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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 10) (NO 39 OF 2009)
2009
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Planning and Development
Amendment Regulation 2009 (No
10)
SL2009-39
EXPLANATORY
STATEMENT
Circulated by authority of the
Minister for Planning
Mr
Andrew Barr MLA
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (No
10)
EXPLANATORY STATEMENT
Overview
This statement applies to the
Planning and Development Amendment Regulation 2009 (No 10) (the proposed
law) made under the Planning and Development Act 2007 (the Act) and
related policies and measures.
On 3 February 2009, the Commonwealth
announced a $14.7b Building the Education Revolution funding package
which is a component of the $42b Nation Building and Jobs Plan (the
Commonwealth Plan), which is providing a stimulus to the national economy to
mitigate the effects of the current global financial crisis and economic
downturn. The funding for the Commonwealth Plan is the subject of the
Appropriation (Nation Building and Jobs) Act (No. 2) 2008-2009 (Cwlth).
The ACT Government has also allocated significant additional stimulus
funding for various school projects to help counter the effects of the economic
downturn on the ACT economy. Among the projects to be funded are P-10 schools
(i.e. schools catering for preschool to year 10 on the one campus) to be built
at Harrison and Kambah. The Government previously announced these new schools as
part of the Towards 2020: Renewing our schools policy initiative, which
is bringing significant reform to the ACT’s public education system, and
will ensure access to a range of high quality public schools for Canberra
students. The Government’s ‘Towards 2020’ policy and
the decision to build the Harrison and Kambah P-10 schools has been the subject
of extensive community consultation.
Given the availability of the ACT
government project funding and the importance of the proposed school projects it
was deemed necessary to amend the Planning and Development Regulation
2008 (the regulation) in order to limit the potential for the construction
of these two major school projects to be substantially held up as a result of
delays in the development assessment or appeals process.
The Planning
and Development Amendment Regulations 2009 Nos 2 and 4 introduced
development approval exemptions and limited public notification for a wide range
of building projects at existing schools. This was to ensure that the Canberra
community could receive the substantial but strictly time-limited funding under
the Commonwealth’s Building the Education Revolution funding
package and associated Territory stimulus funding measures.
The proposed
law allows the Minister for Planning to declare a former school site, or a site
adjacent to a school, to be an ‘existing school’. This is intended
to deal with a limited number of school developments – in particular the
Harrison and Kambah P-10 schools, but possibly others should a need arise, to
ensure that the development will be subject to the recent amendments to the
regulations in relation to schools. This enables these projects to be correctly
seen as maintenance of effort in relation to building programs for school
campuses – failure to deliver such programs could result in loss of
Commonwealth funding under the stimulus package.
It was always intended
that these schools should be covered by the Planning and Development
Amendment Regulations 2009 Nos 2 and 4. However, it has been decided that
the proposed law is necessary for a very small number of schools to avoid doubt
that these can be covered by the regulation. The proposed law therefore extends
the existing provisions in the regulation to a school which is declared by the
Minister for Planning to be an existing school.
In summary, the effect of the proposed law is as follows:
1. For school developments subject to development approval
School developments which are undertaken on a school site declared by the
Minister to be an existing school, and which are included in items 7 and 8,
schedule 2 of the regulation will:
• require notification to adjoining
premises only, with a notification period of 10 days
• not be subject
to 3rd party appeal in relation to the DA decision
• be time limited to
expire on 31 March 2013
2. For school developments that are exempt from development approval
School developments which are undertaken on a school site declared by the Minister to be an existing school, and which is a development or activity covered by subdivision 1.3.6A.2, schedule 1 will:
• not require development approval
• not be subject to third party appeal (as no decision on development
approval is required, there is no reviewable decision under schedule 1 of the
Planning and Development Act 2007)
• be time limited in some
circumstances (s1.99C and s1.99D expire on 31 March 2013; other exemption
provisions for minor structures and activities are not time limited by the
existing regulation)
Exemptions for straightforward developments
A key goal of the
Government’s reform of the planning system and the introduction of the
Planning and Development Act 2007 (the Act) was to enhance the
timeliness, transparency and efficiency of the planning processes. One of the
ways that the Act achieves this goal is by allowing straightforward developments
of low significance to be exempt from requiring a development approval (DA) (see
Act, s 133). This recognizes that there is little value added by requiring a DA
in such cases, given that typically the DA process would simply verify that the
development is compliant with the relevant codes, but would not enhance the
quality of the proposed development. The Act provides for the removal of the
need to obtain development approval for such straightforward or minor projects,
for example, for new code compliant single residences, and minor structures such
as sheds, garages and pergolas etc. Applying this approach, Division 1.3.6A
(Exempt developments – schools) of the regulation lists a range of school
developments and structures that are exempt from development approval.
Public notification
Public notification of development applications
allows third parties (neighbours, etc) to comment on the proposals. There are
statutory requirements in relation to public notification of development
applications (the Act, Division 7.3.4). Notification can involve letters to
neighbours, posting a sign on the land and placing a notice in the newspaper.
Anyone can make a representation about a development application that has been
publicly notified under the Act (see section 156). Such representations must be
made during the relevant public consultation period which varies from 10 to 15
working days and can be extended by the planning and land authority (the
authority).
Due to the time limits on the funding by the Commonwealth and the need for
both the Commonwealth and Territory funding to achieve the objective of
stimulating the economy, the Government chose the option of expediting
development applications for school projects which are not exempt development
and therefore, still require development approval, by temporarily limiting the
public notification requirements for such applications.
Under section 152 of
the Act the authority must publicly notify certain types of development
applications. Section 152(1)(a) requires that the authority must undertake
public notification of merit track development applications prescribed by
regulation in the manner prescribed in section 152(2). Under section 152(2), the
authority may prescribe, by regulation, public notification under either section
155 (Major public notification) or section 153 of the Act (Public notice to
adjoining premises – i.e. “limited” public notification).
Section 27 of the regulation prescribes public notification of merit track
applications for sections 152(1)(a) and 152(2).
Under section 27(3) of
the regulation, applications in the merit track set out in schedule 2 of the
regulation must be notified in accordance with section 152(2)(b), that is, under
section 153 (Public notice to adjoining premises). Section 157 of the Act
provides for the regulation to set out the length of the public notification
period. Section 28 of the regulation states that a limited public notification
matter has a public consultation period of 10 working days unlike major public
notification matters which have a public consultation period of 15 working
days.
Third party appeals
The proposed law has the effect of applying limited public notification to the school development application matters specified in items 7 and 8 of schedule 2 of the regulation to a school declared by the Minister to be an existing school under s1.96A(1)(b).
Under item 4 of schedule 1 of the Act, third party appeals do not apply to
merit track applications that need only be publicly notified under section 153
of the Act (i.e. limited public notification). In addition, item 1 of schedule 3
of the regulation (Merit track matters exempt from third-party ACAT review)
provides that a development to which schedule 2 applies is exempt from third
party appeals. Items 7 and 8, schedule 2 only apply to projects that are funded
by a ‘declared funding’ program (i.e. an economic stimulus program
see s405, 406). Thus, the amending regulation means development applications
relating to existing schools are not subject to third party appeals.
The
streamlining of the public notification requirements and the elimination of
third party appeals for those matters means that schools can take advantage of
the Commonwealth and Territory stimulus funding in a much shorter time frame.
This ensures that the benefits in terms of school projects and stimulus to the
economy can be realised in a timely manner, and any risk of losing access to the
funds due to delays is minimised. It should also be noted that the removal of
third party appeals under the proposed law is temporary and will expire on 31
March 2013
The exemption of third party appeals in relation to the school
projects in this amending regulation are not the first exclusions of this sort
under the Act. There is a range of matters already in schedule 2 of the
regulation which excludes third party appeals and also schedule 3 of the
regulation excludes certain third party appeals.
Human rights issues in relation to schedule 2
The Human Rights Act 2004 (the HRA), in sections 12 (right to
privacy) and 21 (right to a fair trial [including a hearing]), recognises
certain rights that arguably may be affected by schedule 2 of the regulation.
However, in relation to section 21, it would appear that case law from related
jurisdictions indicates that human rights legislation containing the equivalent
of section 21 does not guarantee a right of appeal for civil matters.
Opportunities for input into planning and development applications and the
existence of a right to judicial review have been held in many cases to satisfy
the requirement of the right to a fair trial. Case law in relation to human
rights legislation containing the equivalent of section 12 suggests that any
adverse impacts of a development authorised through a planning decision must be
quite severe to constitute unlawful and arbitrary interference with a
person’s right to privacy.
To the extent that schedule 2 of the
regulation limits any rights afforded by the HRA, these limitations must meet
the proportionality test of section 28 of that legislation. The schedule serves
to improve the development assessment process within the Territory by ensuring
that only matters which have the potential to significantly impact on
residential areas are open to third party appeals. Persons that may be affected
by particular development applications in these areas continue to have the
ability to make submissions on individual development applications as well as
territory plan variations that establish the overall planning policy for these
areas. Rights of judicial review under the Administrative Decisions
(Judicial Review) Act 1989 remain.
On balance, the social and
economic benefits that will flow to the ACT community from securing the
substantial funding available for school building projects, both under the
Commonwealth Plan and Territory Government’s Towards 2020: Renewing our
schools policy, outweigh the limited foregoing of third party appeal rights
on development assessment decisions. This is especially the case given that the
restrictions are limited to projects on existing school campuses; time limited
to 31 March 2013; and restricted to projects that are funded by declared funding
programs.
Schedule 2 achieves an appropriate balance between the general
benefit to the ACT community of facilitating development and the protection of
the interests of residents and others likely to be affected by such development.
In all these circumstances, the proportionality test of section 28 is met.
Clause 1 – Name of Regulation –states the name of the
regulation, which is the Planning and Development Amendment Regulation 2009
(No 10).
Clause 2 – Commencement – states that the
regulation commences on the day after its notification day.
Clause
3 – Legislation amended – states that the regulation
amends the Planning and Development Regulation 2008.
Clause 4
– Schedule 1, section 1.96, definition of existing school
– the existing definition is omitted.
Clause 5 – Schedule
1, section 1.96A – a new section is inserted:
1.96A Meaning
of existing school – div 1.3.6A
Subsection (1) (a) repeats the
definition of existing school as used in the previous s1.96, and adds a new
subsection (1)(b) which includes in the definition of existing school to include
land that
(i) either:
(A) has been a school that existed before the commencement day; or
(B) is adjacent to an existing school; and
(ii) is being developed or redeveloped to be, or be part of, a school; and
(iii) is declared by the Minister to be an existing school,
Subsection (2) provides that the Minister’s declaration is a notifiable instrument.