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LAND (PLANNING AND ENVIRONMENT) AMENDMENT REGULATION 2006 (NO 2) (NO 13 OF 2006)
2006
LEGISLATIVE ASSEMBLY
FOR THE
AUSTRALIAN CAPITAL TERRITORY
LAND (PLANNING AND ENVIRONMENT)
AMENDMENT REGULATION 2006 (No 2)
Subordinate Law No SL2006-
13
EXPLANATORY STATEMENT
Circulated by authority of Simon
Corbell MLA
Minister for Planning
The Land (Planning and Environment) Amendment Regulation 2006 (No 2)
(amendment regulation) amends schedule 7 of the Land (Planning and
Environment) Regulation 1992 to create exemptions from third party
appeals in relation to all development within the Civic centre area, a town
centre area and an industrial area.
The Civic centre area is outlined by
a map that forms part of the amendment regulation. The four town centre areas
of Belconnen, Gunghalin, Tuggeranong and Woden are also identified by maps that
form part of the regulation. In the Civic centre area and a town centre area
the exemption applies to any development within that mapped area regardless of
land use policy area. The land use policy areas include commercial, community
facilities, urban open space, entertainment, accommodation and leisure. The
Civic centre area also includes designated areas.
Industrial areas are
those areas designated as industrial by the territory plan. Currently these are
Fyshwick, Hume and Mitchell.
The exemption from third party appeals
applies from the date after the notification of the amendment
regulation.
Notification of development applications in the Civic centre
area, a town centre area and industrial areas will still occur in the
circumstances where notification already occurs (Schedule 6 of the Land
(Planning and Environment) Regulation 1992 contains a number of
exemptions to notification requirements). The amendment regulation also does not
affect rights persons may have under the Administrative Decisions (Judicial
Review) Act 1989.
Background
Section
276 of the Land (Planning and Environment) Ac 1991 provides that persons
who have made an objection to a development application may apply to the
Administrative Appeals Tribunal for the review of any decision by the relevant
authority to grant approval to that application (known as third party appeals).
Section 282 enables regulations to be made that exempt certain development from
the application of section 276.
Schedule 7 of the Land
(Planning and Environment) Regulation 1992 contains the list of
exemptions from third party appeals. A number of these exemptions already apply
to certain development in the land use policy areas found within the Civic
centre area and a town centre areas and in industrial areas. Certain exemptions
also apply to development within designated areas. The effect of the amendment
regulation is to widen the existing exemptions to encompass all development
within the Civic centre area, a town centre area and industrial areas, while
allowing the existing exemptions to continue to apply in other parts of the
Territory.
The Government in its Directions paper and technical papers
for the Planning System Reform Project proposed to modify third party appeal
rights, so that in general terms, only development applications having
significant off site impacts, particularly in residential areas, would be open
to third party appeals.
The Government’s response, after
considering the comments from the community on the Planning System Reform
Project proposals, was to affirm its intention to continue with the development
of a track based assessment system, in which there would be certain cases, such
as town centres, where there might be notification but no third party appeal
rights. The amendment regulation is broadly consistent with the
Government’s response.
The Human Rights Act 2004, 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 the
amendment 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 the amendment
regulation limits any rights afforded by the Human Rights Act 2004, these
limitations must meet the proportionality test of section 28 of that
legislation. In this case the amendment regulation serves to improve the
development assessment process within the Civic centre area, a town centre area
and industrial areas by increasing certainty and reducing delays and costs. It
should serve to facilitate development in these areas, which is of general
benefit to the Territory. 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 remain.
Section 1 - Name of regulations - provides that the name of
the amendment regulation is the Land (Planning and Environment) Amendment
Regulation 2006 (No 2).
Section 2 - Commencement - provides
that the amendment regulation commences on the day after its notification day.
Section 3 – Legislation amended – provides that the
amendment regulation amends the Land (Planning and Environment) Regulation
1992.
Section 4 – Schedule 7, item 7, column 2 - is
consequential on section 6 and clarifies the relationship between the exemption
created by section 6 and other municipal services area exemptions.
Section 5 – Schedule 7, item 8, column 2 - is consequential
on section 6 and clarifies the relationship between the exemption created by
section 6 and other commercial area exemptions.
Section 6 - Schedule
7, item 9, column 2 - is consequential on section 6 and clarifies the
relationship between the exemption created by section 6 and other entertainment,
accommodation and leisure area exemptions.
Section 7 - Schedule 7,
item 10, column 2 - is consequential on section 6 and clarifies the
relationship between the exemption created by section 6 and other community
facility area exemptions.
Section 8 – Schedule 7, new item 10A
- inserts an additional exemption from third party appeals in relation to
development on land within the Civic centre area, a town centre area and an
industrial area.
Section 9 - Schedule 7, item 11, column 2 - is
consequential on section 6 and clarifies the relationship between the exemption
created by section 6 and other open space area exemptions.
Section 10
- Schedule 7, item 13, column 2 - is consequential on section 6 and
clarifies the relationship between the exemption created by section 6 and other
designated area exemptions.
Section 11 - New schedule 8 - inserts
maps for the Civic centre area and the four town centre areas (Belconnen,
Gunghalin, Tuggeranong and Woden) to which the exemption
applies.
Section 12 – Dictionary, new definitions - inserts
definitions of Civic centre area, town centre area and industrial area, which
are defined as the areas outlined on the maps in schedule 8. An industrial area
is an area designated as industrial by the territory plan. Currently these are
Fyshwick, Hume and Mitchell.