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PLANNING AND DEVELOPMENT (UNIVERSITY OF CANBERRA) AMENDMENT REGULATION 2015 (NO 1) (NO 4 OF 2015)
2015
THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
PLANNING AND DEVELOPMENT (UNIVERSITY OF CANBERRA)
AMENDMENT REGULATION 2015 (No 1)
Subordinate law SL2015-4
EXPLANATORY STATEMENT
Presented by
Mr Mick Gentleman MLA
Minister for Planning
EXPLANATORY STATEMENT
This explanatory statement relates to the Planning and Development (University of Canberra) Amendment Regulation 2015 (No 1) (the amending regulation) as presented to the ACT Legislative Assembly. It has been prepared in order to assist the reader of the amending regulation and to help inform debate on it. It does not form part of the amending regulation and has not been endorsed by the Assembly.
The statement is to be read in conjunction with the amending regulation. It
is not, and is not meant to be, a comprehensive description of the amending
regulation. What is said about a provision is not to be taken as an
authoritative guide to the meaning of a provision: this is a task for the
courts.
Terms used
The following terms are used in this
explanatory statement:
“Act” means the Planning and
Development Act 2007
“Regulation” means the Planning and
Development Regulation 2008
“DA” means a Development
Application under the Act
“ACAT” means the ACT Civil and
Administrative Tribunal
“Third-party review” is a
reference to a third-party who makes application to the ACAT for merit review of
a decision to grant a development approval.
“Assessment
track” means an assessment track in which the DA will be assessed.
The tracks are code, merit and impact assessment and prohibited and exempt
development, with each having its own assessment processes and requirements.
They are described in chapter 7 of the Act. The amending regulation only deals
with merit track DAs.
Background
The University of Canberra
(the University), began as an institution established under Commonwealth law as
the Canberra College of Advanced Education (CCAE) and reflected the status of
the Australian Capital Territory as a territory managed by the Commonwealth for
the people of Australia.
With self-government in 1988 the ACT
established the University of Canberra under the University of Canberra Act
1989. The University has been sited at its present location in Bruce since
its inception, as the CCAE in 1967.
From inception to the present, the
University of Canberra has been evolving to respond to the needs of the
community: local, national and international. This evolution has seen the
University grow from a college of advanced education, to a fully fledged
university; to a university that works in partnership with other educational
institutions: the University is partnered with two local ACT schools UC Senior Secondary College
Lake Ginninderra
(formerly Lake Ginninderra Senior Secondary College) and University of Canberra High School (formerly Kaleen High School); to partnerships that reach beyond the boundaries of the ACT: from 2014, the university also offers its degrees at the Holmesglen Institute of TAFE
, Metropolitan South Institute of TAFE
, Northern Sydney Institute of TAFE
and South Western Sydney Institute of TAFE
.
The University of Canberra (UC) has recognised it will need to
adapt its operating model not only to survive, but in order to thrive in an
increasingly competitive territory education environment. The UC has outlined
its plans to do this without seeking direct government investment.
The UC
Council has developed a Master Plan for the future: a plan that fulfils
the initial Master Plan developed in 1967 for the university. The Council
proposes to undertake significant works that will under-pin teaching, learning
and research with first rate buildings and facilities; creating a strong campus
identity that engages and connects with surrounding neighbourhoods promoting an
enjoyable public domain that enhances the existing bush-land setting and
providing a logical, integrated circulation network for pedestrians, cyclists,
cars and public transport.
The university proposes, as part of these
works, the development of community health and teaching clinics; a great hall
and polytechnic; indoor and outdoor sporting facilities that will promote
teaching, internships and research opportunities; and enterprise buildings that
can support community and government engagement with quality 24/7 conference
facilities, training and exhibition facilities, and apartments for visiting
academics.
The proposed developments will enable the University to
capitalise on its assets to provide financial viability for now and into the
future. This development will positively contribute to economic activity across
the ACT. Developments undertaken as part of the UC Master Plan will require a
development application (DA) under the Planning and Development Act 2007
(the P&D Act). A DA will be assessed in the appropriate assessment track:
merit or impact. Normal development assessment and notification processes will
apply.
However, if a DA attracts a third-party appeal there is a very
real possibility for the DA to be significantly delayed. The P&D Act allows
Government the capacity to exclude certain DAs from third-party appeal when it
is warranted to do so.
The Act provides, at section 407 and schedule 1,
item 4, column 2, par (b), that a development application in the merit track can
be exempted, by regulation, from third-party review to the ACT Civil and
Administrative Tribunal (ACAT).
Section 350 of the regulation specifies
that a development application in the merit track in relation to a matter
mentioned in schedule 3 part 3.2 of the regulation is exempt from third-party
review.
Although the Act also provides the same capacity to exempt impact
track applications, the amending regulation does not propose this: impact track
DAs, in the identified area will remain open to third-party
review.
Excluding third-party review rights does not remove the capacity
to seek a review of a decision under the Act through the Administrative
Decision (Judicial Review) Act 1977 or through the Courts. Importantly, the
community will still be able to make representations on a DA for the site and
these will be considered by the planning and land authority in arriving at its
decision on the DA.
The exclusion of third-party review rights are site
specific and have no general application to other areas in the ACT. A DA in the
merit track outside of the defined area, and not already exempted, will remain
open to third-party review.
Overview
There is limited scope to
expedite the planning process by administrative means, as assessment processes,
notification requirements, entity referrals, time for responses and
consideration matters are prescribed in legislation. Merit track DAs have a
statutory time period of 30 working days when there are no representations and
45 working days when there are (section 122 of the Act – merit track) to
decide DAs, although, complex DAs can exceed these time frames.
A
significant risk to these time periods is applications for third-party review.
A DA does not become effective until 28 days after the decision (i.e. in
addition to the statutory time periods above), in order to allow for the
potential lodgement of third-party appeals.
Should an appeal be lodged,
ACAT has 120 days to determine the appeal (section 22P ACT Civil and
Administrative Tribunal Act 2008), although this time frame is often
exceeded in the case of contentious or complex matters and an appeal time of
greater than six months cannot be discounted.
This means that if the DA
attracts an appeal, a minimum delay of 148 days (or longer) is possible before
building work can commence. During this delay the proponent has to manage the
project and attempt to keep the project costs within budget. It is not
unreasonable to suggest that the delay can significantly contribute to holding
costs for the buildings and these costs are invariably passed on to the end
user, i.e. the university. Secondly, members of the university, students and
associated visitors will have access to the new facilities delayed for some
considerable time.
The amending regulation proposes removal of
third-party appeal rights for a merit track DA on the site of the University of
Canberra, Bruce. The amending regulation operates under the express power
conferred under the Act and regulation.
There are already significant
classes of development approvals that have been exempted from third-party review
(see section 350, schedule 3 part 3.2 of the regulation for example –
merit track). Typically developments in town centres across the ACT are exempt
from third-party review as is the developing region around the Kingston
Foreshore.
It should be noted that the regulation does not create a new
class of developments that are exempt from all assessment and review processes,
rather it removes third-party review rights for development on a specified site.
Removal of third-party review rights, for merit track DAs is considered
acceptable in this instance for the following reasons:
1. The University site
is approximately 117 ha and is bounded by four major roads: Ginninderra Drive
to the north, College Street to the south, Aikman Drive to the west and Haydon
Drive to the east. Therefore, is largely separated from adjoining urban
areas.
2. Large areas of urban open space have frontage to the opposite side
of these roads. For example:
a. Land south of College Street, not part of
the Belconnen town-centre, is urban open space;
b. John Knight Memorial Park
to the west of Aikmen Drive; and
c. Urban open space to the north and south
of Eardley Street, west of Haydon Drive.
3. In the southwest corner of the
site adjacent to the junction of College Street and Aikman Drive, the site,
shares a boundary with the Belconnen town-centre an area already exempt from
third-party appeal rights. .
4. The university complements existing
development in the area. For example:
a. on the west side of Aikmen Drive are
the educational institutions of UC Senior Secondary College and Arscott House,
both affiliated with the UC; the Canberra Lakes Estate, a life-style living area
and Kangara Village: an assisted living estate.
b. across the 4 traffic
lanes of Haydon Drive is the Fernhill Technology Park, while across the 6
traffic lanes of Ginninderra Drive is the new estate of Lawson which will allow,
amongst other things, high and medium residential development, community open
space and facilities and transport areas.
5. The site is located within a
well established area, the University has been in operation since 1967 and areas
have developed around the University. Further, the broader vicinity is well
established as a hub and includes the Belconnen town-centre, government schools
and colleges, sports venues including the Australian Institute of Sport, and the
Calvary Hospital (located on the corner of Belconnen Way and Haydon
Drive).
6. If the development proposal triggers the need for an environmental
impact assessment the application will be assessed in the impact track and
third-party review rights remain available.
The site is part of a vibrant
and active community where existing residents choose to live. The proposed
developments, anticipated through the UC Master Plan, will add to this vibrancy
bringing additional employment opportunities and supporting economic growth of
the District of Belconnen and the ACT.
Other types of development e.g.
single residential development, certain development in commercial zones and
correctional facilities are exempt from third party review. There is no
evidence that these exemptions have adversely impacted on residents in these
areas while the building industry benefits from being able to commence works
with certainty and within time and dollar budget.
The Legislative
Assembly has considered such exemptions a number of times previously and the use
of the powers within the Act is considered consistent with the Government
objectives behind making the Act and the objects stated in section 6 of the Act
(see associated Regulatory Impact Statement).
In respect to the
Legislative Assembly’s Scrutiny of Bills Committee terms of reference, the
proposed law can be considered to trespass on rights previously established by
law as it removes an existing right of review. The issue is whether it does so
unduly. In addition, by removing existing review rights, the proposed law makes
certain rights, etc dependent on decisions that are non-reviewable. Again, the
issue is whether it does so unduly.
The Act modified third-party appeal
rights, so that in general terms, only DAs having significant off site impacts,
particularly in residential areas, would be open to third-party appeals.
Third-party appeal rights have been significantly modified during the first six
plus years of the Act’s operation to align the Act with its core policy
objectives of increasing certainty and clarity around development processes and
making the planning system “faster, simpler and more effective.”
Significant community input and consultation occurred during creation of
the new planning system including the Act, its zoning and development provisions
and the Territory Plan.
The Human Rights Act 2004, in section 21
(right to a fair trial [including a hearing]), recognises certain rights that
arguably may be affected by the proposed law.
However, in relation to
section 21, it would appear that case law indicates that human rights
legislation 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.
In two
ACAT[1] cases (Thomson v ACT
Planning and Land Authority [2009] ACAT p38 and Tran v ACT Planning and
Land Authority & Ors [2009] ACAT p46) ACAT agreed that some limitation
on third-party appeal rights is warranted when it delivers certainty and
predictability for proponents. Specifically the Commissioner (in Thomson)
commented that “...providing certainty and predictability for applicants
for development approval, and the need to ensure a timely approval process are
sufficiently important objectives to justify some constraints on third-party
review rights.[2]”
In a
further ACAT case (Tran[3]) the
Tribunal agreed with the approach in Thomson. Further in (Tran) the
Tribunal noted: “Certainly it is not unusual in Australian planning law
for the rights of third-party objectors to be limited or removed by legislation
or other instruments.[53]
See generally G McLeod (ed) Planning Law in Australia and for
examples, note the restrictions in New South Wales at [1.180], Queensland at
[1.2059] and Victoria at [2.740]”.
To the extent that the proposed
law limits any rights afforded by the Human Rights Act 2004, these
limitations must meet the proportionality test of section 28 of that
legislation.
Persons that may be affected by the development envisaged in
this amending regulation continue to have the ability to make submissions on the
DA, which the planning and land authority must consider in reaching any
decision. The proposed law does not affect rights persons may have under the
Administrative Decisions (Judicial Review) Act or at common
law.
There remains the question of whether the amending regulation
contains matters that should properly be dealt with in an Act of the Legislative
Assembly as (opposed to a regulation).
As indicated above, schedule 1 of
the Planning and Development Act, item 4, column 2, par (b) and item 6 expressly
allows the Executive to make regulations to exempt specified matters in the
merit and impact assessment tracks from being subject to third-party review.
This means the amending regulation is within an express power granted by the
Legislative Assembly and clearly in line with its intended purpose of focussing
merit review on matters of greater impact (both onsite and offsite). The
Legislative Assembly has also considered favourably several similar regulations
made under this provision on previous occasions.
In summary the
regulation does not unduly trespass on existing rights, or, make rights unduly
dependent upon non reviewable decisions and is an appropriate matter for
regulation.
Regulatory Impact Statement
In accordance with section 36 of the Legislation Act 2001, a Regulatory Impact Statement (RIS) for the amending regulation has been prepared.
Outline of Provisions
Clause 1 Name of regulation
Clause 1 names the regulation as the Planning and Development (University of Canberra) Amendment Regulation 2015 (No 1).
Clause 2 Commencement
Clause 2 states that the amending regulation commences on the day after its notification.
Clause 3 Legislation amended
Clause 3 notes that the amending regulation amends the Planning and Development Regulation 2008.
Clause 4 Schedule 3, part 3.1, section 3.1, new definition of University of Canberra site
Clause 4 inserts a new definition of University of Canberra site in schedule 3. This is a consequence of the amendments made by clauses 5 and 6 below. The definition is necessary to give effect to the limited application proposed by the amending regulation.
Clause 5 Schedule 3, part 3.2, new item 16
Clause 5 inserts in schedule 3, part 3.2 a new item. The item covers “A development on land in the University of Canberra site.”
Clause 6 Schedule 3, new division 3.4.7
Clause 6 inserts a diagram identifying the physical site to which this amending regulation applies.
Clause 7 Dictionary, new definitions
Clause 8 inserts a new definition for University of Canberra site in the Dictionary, referencing to the new definition inserted into Schedule 3, at clause 4 above.
[1] ACAT cases can be accessed at http://www.acat.act.gov.au/decisions.php
[2] Extract of Commissioner’s comments. Thomson v ACT Planning and Land Authority [2009] ACAT 38 at para 99
[3] Tran v ACT Planning and Land Authority & Ors [2009] ACAT 46