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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 7) (NO 31 OF 2009)
2009
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Planning and Development
Amendment Regulation 2009 (No
7)
SL2009-31
EXPLANATORY
STATEMENT
Circulated by authority of the
Minister for Planning
Mr
Andrew Barr MLA
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (No
7)
EXPLANATORY STATEMENT
Overview
On 3 February 2009, the Commonwealth
announced its $42b Nation Building and Jobs Plan (the Commonwealth Plan).
The funding for the Commonwealth Plan is the subject of the
Commonwealth’s Appropriation (Nation Building and Jobs) Act (No. 2)
2008-2009. The Commonwealth Plan is intended to provide a stimulus to the
national economy to mitigate the effects of the current global financial crisis
and economic downturn. The Commonwealth Plan provides funding for various
projects including for public and community housing and defence housing. The
funds are granted on the condition that they be spent or be committed for
spending within a short time period. For example, a significant amount of the
funds must be spent within 12 months of the announcement of the Commonwealth
Plan or they may be lost to the Territory.
ACT Government funding will
also be available for various projects. Given the time frames required by the
Commonwealth Plan and the availability of the ACT government project funding, it
is necessary to amend the Planning and Development Regulation 2008 (the
regulation) in order to limit the potential for individual projects to stall as
a result of delays in the development assessment or appeals process.
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 (Division 7.3.4 of the Planning and Development Act 2007
(the Act)). 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 their objective of
stimulating the economy, the government chose the option of expediting
development applications for social housing projects which are not exempt
development and therefore, require development approval, by limiting the public
notification such applications to the minimum period of 10 days working days.
In accordance with section 152 of the Act, the authority must publicly
notify certain types of development applications. Under section 152(1)(a), 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
(Public notice to adjoining premises) of the Act. Section 27 of the current
regulation prescribes public notification of merit track applications for
sections 152(1)(a) and 152(2).
Under section 27(3) of the current
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 (i.e.
neighbour) notification matter has a public consultation period of 10 working
days while major public notification matters have a public consultation period
of 15 working days.
The proposed regulation includes a new section
27(4) which states that an application for a social housing development
proposal (new items 9, 10 and 11 in schedule 2) is not prescribed for section
152(1)(a) of the Act. This has the effect of requiring the planning and land
authority to notify the proposal in accordance with section 152 (1)(b), which
means that a social housing application must be publicly notification under both
section 155 (Major public notification) and section 153 (Public notice to
adjoining premises).
The proposed regulation also includes a new section
28(2) which specifies that the period of public notification for a
development mentioned in section 27(4) is 10 working days.
Third party appeals
The effect of bringing social housing development applications into schedule
2 of the regulation (i.e. proposals specified in Clause 8 of the proposed
regulation) is that there can be no third party appeals for these
projects.
The exclusion of third party appeals for the projects covered by
the proposed regulation is not the first such exclusion under the Act. The Act
specifically provides, through schedules 2 and 3, for a range of matters to be
exempt from third party appeals.
It should be noted that the removal of
third party appeals is for a limited period only (until 30 June 2012), and this
exemption only applies to projects funded by a ‘declared funding
program’, i.e. the Commonwealth or Territory economic stimulus programs.
The adoption of the minimum public notification period (10 days) and the
time limited exemption from third party appeals for matters covered by Clause 8
mean that government and community housing providers will be best placed to
effectively use stimulus package funding in the shortest possible time frame.
This ensures that the benefits in terms of provision of increased social housing
and the resultant economic stimulus to the economy can be realised sooner, and
the risk of losing funding due to delays in the development application process
will be minimised.
Taken together, the proposed amendments to the
regulation have the effect of:
• Requiring the planning and land authority to publicly notify a merit track social housing proposal by letter to adjoining properties, by signage on the development site, and by newspaper notice;
• Setting the public consultation period at 10 working days; and
• Excluding third party ACAT review.
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[1].
In relation to
planning matters, human rights law has not identified a third party right of
appeal as a requirement, except in relation to a particularly badly affected
'victim' of a planning decision. Instead, a combination of opportunities for
input by third parties of their views on planning applications and the ability
to have recourse to judicial review, has been found to be sufficient to satisfy
the requirements of the right to a fair
trial[2].
Furthermore, 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 under the Commonwealth Plan for
social housing projects outweigh the limited foregoing of third party appeal
rights on development assessment decisions. This is especially the case given
that the exemption is time limited to 30 June 2012; only applies to projects
that funded under declared funding programs (i.e. Commonwealth or Territory
economic stimulus programs); and there will be major public notification of all
proposals and there will still be the opportunity to make representations to the
planning and land authority.
The proposed amendments achieve 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 7).
Clause 2 – Commencement – states that the
regulation commences on a day after its notification day.
Clause 3
– Legislation amended – states that the regulation amends the
Planning and Development Regulation 2008.
Clause 4 – New
section 27(4) – states that an application for a development proposal
for the following items:
• schedule 2, item 9
• schedule 2, item 10
• schedule
2, item 11
is not prescribed for section 152(1)(a) of the Act, which as the effect of requiring the planning and land authority to notify a proposal for the items in accordance with section 152(1)(b).
Clause 5 – New section 28(2) – states that an
application for a development proposal in section 27(4) the prescribed period of
public notification is 10 working days.
Clause 6 – Section 406
(1)(a) - includes social housing programs and developments in matters that
the Chief Minister may declare to be a declared funding program (this is
currently limited to funding for development activities in
schools).
Clause 7 – new section 407(1) - states that
following provisions expire on
30 June 2012:
• section 27(4)
• section 28(2)
• schedule 2, item
9
• schedule 2, item 10
• schedule 2, item
11
• dictionary definition of multi-unit housing
The limited
period of operation will ensure the Territory can take advantage of the extra
funding available for social housing as a result of the Commonwealth and
Territory economic stimulus programs which it is anticipated will cease be
available by 30 June 2012.
Clause 8 – Schedule 2, new items 9,
10 and 11 – inserts new items 9, 10 and 11 in schedule 2 of the
regulation. Schedule 3 of the regulation lists merit track matters exempt from
third-party ACAT review – item 1 of schedule 3 is any development to which
schedule 2 applies.
New item 9 – adds to schedule 2 the
building of single or multi-unit dwellings (and associated activities) by or for
the Territory, where:
• the development is funded under a declared
funding program;
• the dwelling is built on land leased by the
Territory, a territory authority, or under an agreement to transfer the land
back to the Territory once the dwelling is built;
• the dwelling will
be provided by the Territory under an approved social housing program or
transferred to a community housing provider
New item 10 - adds to
schedule 2 the building of single or multi-unit dwellings (and associated
activities) by or for a community housing provider, where:
• the
development is funded under a declared funding program;
• the dwelling
is built on land leased by a community housing provider, or under an agreement
to transfer it to a community housing provider once the dwelling is
built;
• the dwelling will provide community housing
New item
11 – adds to schedule 2 the building of single or multi-unit dwellings
(and associated activities) for defence housing, where:
• the
development is funded under a declared funding program;
• the dwelling
is built on land leased by Defence Housing Australia;
• the dwelling
will provide defence housing
Note: The Commonwealth Government has also
approved funding of around $252 million for Defence Housing Australia to
construct 802 new homes across Australia. It is expected that approximately $3
million of this will be spent in the ACT on the construction of defence housing.
Clause 9 – Dictionary, note 2, new dot point –
inserts territory authority as a new dot point under note 2 in the
dictionary, which gives examples of terms defined in the Legislation Act.
A territory authority is defined in that Act as “a body established
for a public purpose under an Act, but does not include a body declared by
regulation not to be a territory authority.”
Clause 10 –
Dictionary, new definition of multi-unit housing – inserts a
definition of multi-unit housing by calling up the definition in
Territory Plan dictionary, which defines multi-unit housing as “the
use of land for more than one dwelling and includes but is not limited to
dual occupancy housing and triple occupancy
housing.”
[1] In I.P v Finland
CCPR/C/48/D/450/1991, the UN Human Rights Committee noted that the right to an
appeal is a right with respect to criminal proceedings and is not guaranteed in
civil proceedings: 'The Committee notes that whether matters relating to the
imposition of taxes are or are not "rights or obligations in a suit at law" does
not have to be determined, because in any case the author was not denied the
right to have his claims concerning the decision by the Tax Office heard before
an independent tribunal. As for the author's claim that he was denied the
possibility of appeal, even were these matters to fall within the scope
ratione materiae of article 14, the right to appeal relates to a criminal
charge, which is not here in issue.'
[2] See, for example, R
(Alconbury Developments Ltd and others) v. Secretary of State (2001) 2
W.L.R. 1389 and (2001) 2 All E.R. 929; Tower Hamlets LBC v. Begum (2002)
All E.R. 668; R (Adlard) v. Secretary of State for the Environment (2002)
EWCA Civ 735; Regina (Aggregate Industries) v. English Nature and Secretary
of State (2002) EWHC Admin 908. See also Bryan v United
Kingdom, (1996) 21 EHRR 342