Australian Capital Territory (Planning and Land Management) Act 1988

The Act directly binds four classes of entity.

First, the National Capital Authority (established by s 5 and continued from the former National Capital Planning Authority) is the primary Commonwealth planning and land-management body. Its members, Chief Executive, staff, secondees and consultants are “officials” for the purposes of the Public Governance, Performance and Accountability Act 2013 (s 5(2)).

Second, the Commonwealth and Commonwealth authorities (defined in s 4) are prohibited from performing any act inconsistent with the National Capital Plan (s 11(2)) and must obtain Authority approval before carrying out works in Designated Areas (s 12).

Third, the Territory, the ACT Executive, the Legislative Assembly and Territory authorities (all defined in s 4) must ensure that the Territory Plan is not inconsistent with the National Capital Plan (ss 25, 26) and that no act is performed that is inconsistent with either plan (s 11(2)). The Executive is also the statutory manager of Territory Land and of water-taking on National Land (s 29).

Fourth, private landowners, developers, builders and consultants are affected whenever they wish to undertake “works” (defined in s 4 to include construction, alteration, demolition, landscaping, tree-felling and excavation but not internal fit-outs) inside a Designated Area. Such works are unlawful unless submitted to, approved by and consistent with the Plan administered by the Authority (s 12(1)). Leaseholders on Territory Land are also subject to the Executive’s public-notification and merits-review requirements (s 29(2)).

The Act therefore touches every level of government with interests in the ACT as well as every person who owns, leases or seeks to develop land there.

Duties of the Authority

• Prepare, administer, keep under review and amend the National Capital Plan (s 6(1)(a)–(b)).
• Commission works in Designated Areas where no other Commonwealth body has that responsibility (s 6(1)(c)).
• Recommend desirable works to the Minister (s 6(1)(d)).
• Foster awareness of Canberra as the National Capital (s 6(1)(e)).
• With ministerial approval, provide planning services domestically or overseas (s 6(1)(f)).
• Manage designated National Land for special national-capital purposes, but not water-taking or its regulation (s 6(1)(g) and (2)).
• Approve or refuse works proposals in Designated Areas (s 12(1)).
• Consult the Territory planning authority and the public before certifying, submitting or amending the Plan (ss 15, 18, 23).
• Disclose pecuniary interests and abstain from deliberations where required (s 42).

Duties of the Territory planning authority and the Executive

• Prepare and administer a Territory Plan not inconsistent with the National Capital Plan (s 25).
• Consult the Authority and report in writing before making or amending the Territory Plan (s 25(4)(d)).
• Manage Territory Land and water on National Land in accordance with notified procedures and merits-review rights (s 29).
• Comply with the National Capital Plan (s 11(2)).

Rights

• Existing lawful uses derived from an estate in land are protected from retrospective operation of the Plan for the term of that estate (s 13).
• The Territory receives money payable in respect of Territory Land (s 31(1)) and compensation when Territory Land is converted to National Land (s 31(2)).
• Mineral rights vest in the Territory while land remains Territory Land (s 31A).
• Appropriate classes of decisions on estates in Territory Land are subject to “just and timely review without unnecessary formality” (s 29(2)(b)); the Authority has a statutory right to intervene in such reviews (s 29(4)).
• The public has a statutory right to inspect draft plans, make written representations and have those representations considered (ss 15, 68, 74).

The Act is unusual in that it contains no criminal offence provisions or express civil-penalty regime. Enforcement is achieved through a combination of statutory prohibitions, administrative controls and ordinary remedies.

The core prohibition is absolute: “No works shall be performed in a Designated Area” unless the three conditions in s 12(1) are satisfied. Breach renders the works unlawful. Because the Act binds the Crown in all capacities (subject to express exceptions), both government and private actors are equally constrained. In practice, the Authority can refuse approval, issue stop-work directions under its general powers (s 8), or seek injunctive relief in the Federal Court or ACT Supreme Court to restrain unauthorised works. A person who suffers special damage from a breach of the Plan may also have standing to seek declaratory or injunctive relief on the basis that the statutory duty in s 11(2) is owed to the public at large.

Liability for acts or omissions of the Territory in managing Territory Land or water on National Land is transferred to the Territory itself (s 30). The Commonwealth indemnifies the Territory against claims that would otherwise lie against the Commonwealth (s 51), except for liabilities caught by s 30.

Breaches of disclosure-of-interest rules by Authority members can lead to termination of appointment (s 41(2)(d)–(e)). Ministerial directions given under s 7 are legislative instruments (subject to disallowance and sunsetting regimes) and must be reported annually (s 7(4)). Failure by the Authority to comply with a direction (other than one relating to PGPA Act functions) is unlawful, although the Act creates no separate offence.

In summary, the Act relies on administrative vetoes, civil enforcement and public-law remedies rather than criminal sanctions. The most potent day-to-day control is the requirement for prior written approval under s 12; without it, works are simply prohibited.

The Act is expressly tied to the Australian Capital Territory (Self-Government) Act 1988 (Self-Government Act). Definitions of “Assembly”, “Executive”, “enactment”, “Territory” and “Self-Government Day” are imported from that Act (s 4). Section 25 requires the Assembly to make laws establishing the Territory planning authority and Territory Plan; s 26 ensures the Territory Plan yields to the National Capital Plan. Section 27(3) deems land vested in a Territory person or body by another Act to be National Land.

The Lands Acquisition Act is disapplied in two situations: (a) dealings by the Commonwealth or a Commonwealth authority with interests already vested in them in Territory Land, and (b) acquisitions of estates in Territory Land by the Territory (s 32). Section 31(2) imports the compensation measure from that Act when Territory Land is converted to National Land.

The Public Governance, Performance and Accountability Act 2013 (PGPA Act) governs the Authority’s financial administration: it is a listed entity, the Authority is the accountable authority, and its members, staff, secondees and consultants are officials (s 5(2)). Ministerial directions under s 7 cannot override PGPA Act functions (s 7(3)), and the Chairperson’s additional disclosure obligations under s 29 of the PGPA Act are preserved (s 42(4)).

The Legislation Act 2003 governs the making, disallowance and sunsetting of ministerial directions (note to s 7(1)) and certain instruments made under the Act (s 52). Parliamentary scrutiny and disallowance procedures for the Plan itself are set out in detail in s 22 and mirrored for amendments (s 23).

The Water Resources Act 2007 (ACT) is excluded from the Authority’s management functions on National Land (s 6(2)), but regulations may be made under s 27 of the Self-Government Act to bind the Commonwealth to that Act in respect of National Land (note to s 6(2)). The definition of “take” in relation to water is frozen to the version of the Water Resources Act in force when the definition commenced (s 4).

The Airports Act 1996 (s 112A) expressly provides that Canberra Airport is not a Designated Area, removing it from the Authority’s works-approval jurisdiction under s 12.

Finally, the Seat of Government (Administration) Act 1910 is amended by the Schedule (commencing on a day fixed under s 57) and is modified during the transition period (s 80).

The most significant recent legislative change was the insertion of the water-management provisions by the Australian Capital Territory Water Management Legislation Amendment Act 2013. Prior to that amendment the Authority’s management function under s 6(1)(g) extended to water on National Land. The 2013 Act carved out both the management and regulation of water-taking (new s 6(2)), inserted the frozen definition of “take”, and added Note 1 to s 6 pointing to the possibility of regulations under s 27 of the Self-Government Act that would apply the ACT Water Resources Act to the Commonwealth on National Land. The change reflected a policy decision to consolidate water-resource regulation in the Territory’s hands, consistent with the general transfer of day-to-day land and resource management to the ACT.

Other amendments have been largely mechanical: updating references to the PGPA Act (replacing the former Financial Management and Accountability Act 1997), inserting modern acting-appointment notes referring to s 33A of the Acts Interpretation Act 1901, and adjusting the definition of “full-time member” and quorum rules to accommodate different Chairperson configurations (ss 33, 43). The note to s 4 recording that Canberra Airport is not a Designated Area was added when the Airports Act was amended in 1996.

These changes have not altered the fundamental architecture established in 1988; they have simply aligned the Act with contemporary Commonwealth financial and interpretive legislation and refined the boundary between Commonwealth and Territory responsibilities in the resource-management sphere.

Because the Act creates no criminal offences and relies on administrative controls, reported litigation has been limited. Two categories of dispute recur.

First, the relationship between the National Capital Plan and the Territory Plan has generated controversy. In Canberra Tradesmen’s Union Club Inc v Commissioner for Land and Planning (1998) the ACT Supreme Court considered whether a Territory Plan variation that permitted a particular development was inconsistent with the National Capital Plan’s aesthetic and character standards. The Court held that the Territory Plan could operate concurrently provided it did not contradict the National Capital Plan; the “capable of operating concurrently” test in ss 11(1) and 26 mirrors the test used in covering-the-field inconsistency cases under s 109 of the Constitution.

Second, the scope of the Authority’s works-approval power under s 12 has been tested. Developers have argued that internal fit-outs or minor external works fall outside the statutory definition of “works” (which expressly excludes “anything done inside buildings or structures”). Courts have construed the exclusion narrowly; landscaping, external cladding and structural alterations remain caught even if they occur within a building envelope.

The parliamentary disallowance power in s 22 has also been politically contentious. On more than one occasion a hostile Senate has threatened to disallow parts of the Plan, prompting negotiations between the Minister, the Authority and the ACT government. The revival provision in s 22(4) ensures that earlier parts of the Plan are not inadvertently extinguished.

No High Court challenge has directly tested the constitutional basis of the dual-planning regime, but the arrangements rest on the Commonwealth’s power to make laws for the government of the Territory (s 122 of the Constitution) and the consensual transfer of certain executive functions to the ACT Executive under the Self-Government Act.

Most practitioners assume that once the Authority has approved works under s 12 the project is immune from further Territory planning controls. That is not so. The Territory Plan continues to apply to the extent that it can operate concurrently (s 26). A development may therefore require both Authority approval under the National Capital Plan and a separate development approval from the Territory planning authority. Failure to obtain the latter can still expose the proponent to Territory enforcement action.

Another common misconception is that the 99-year lease limit in s 29(3) applies only to new grants after Self-Government Day. The provision is expressed to apply to any estate granted on or after that day; renewals are permitted, but the clock resets. Careful drafting of lease-extension documents is therefore essential to preserve security of tenure.

The mineral-rights vesting in s 31A is absolute while land remains Territory Land. Commonwealth agencies have been surprised to discover that they cannot exploit minerals on land they occupy unless the land is first declared National Land under s 27. The compensation formula in s 31(2) when land is converted is deliberately generous to the Territory; it assumes a hypothetical maximum-term lease free of most covenants. Agencies negotiating land swaps must factor this payment into their budgets.

Finally, the transitional provisions in Part X are not spent. Certain NCDC policies that were never incorporated into either plan remain capable of affecting titles granted before Self-Government Day. Title searches and due-diligence reports must still examine the old NCDC Gazette notices listed in the ministerial statement required by s 57(3).

Compliance begins with a two-stage due-diligence process.

Step 1 – Classify the land and the proposal.
Determine whether the land is National Land (check the latest s 27 Gazette notices) or Territory Land. Then ascertain whether the site or any part of it falls within a Designated Area shown in the National Capital Plan (available on the Authority’s website). If the proposal involves “works” as defined in s 4 and is inside a Designated Area, a written application to the Authority with plans and specifications is mandatory (s 12(1)).

Step 2 – Align with both plans.
Even if Authority approval is obtained, the proposal must still satisfy the Territory Plan unless the land is entirely within a Designated Area excluded from the Territory Plan by s 25(6). Early pre-lodgement meetings with both the Authority’s planning staff and the Territory’s planning directorate are standard practice. Written confirmation that the proposal is consistent with the National Capital Plan should be sought before committing to detailed design.

Step 3 – Manage the approval sequence.
Because the National Capital Plan prevails, it is prudent to obtain Authority approval first. The Territory planning authority is required to consult the Authority before finalising any decision that could affect a Designated Area (s 25(4)(d)). Applicants should supply both agencies with identical documentation to avoid later inconsistency claims.

Step 4 – Document water and mineral issues.
If the proposal involves water extraction on National Land, the applicant must deal with the Territory’s water regulator, not the Authority (s 6(2)). If mineral extraction is contemplated on Territory Land, the applicant must obtain a separate authority from the Territory; Commonwealth ownership of minerals is extinguished by s 31A.

Step 5 – Keep records for parliamentary and judicial scrutiny.
All Authority decisions on works approvals and plan amendments must be capable of withstanding merits review or judicial review on Wednesbury grounds. File notes demonstrating that public representations were considered (ss 15(2), 68(2)) and that the Territory planning authority’s views were taken into account are essential.

Step 6 – Monitor plan amendments.
Both the National Capital Plan and the Territory Plan are living documents. Subscribers to the Authority’s and ACT Planning Directorate’s amendment alert services can track changes that may affect existing approvals or future development rights.

By treating the two plans as parallel but non-contradictory regulatory overlays, and by securing approvals from both the Commonwealth and Territory streams before commencing physical work, proponents can minimise the risk of stop-work orders, compensation claims or judicial invalidation.