Planning Act 2023

1 Name of Act This Act is the Planning Act 2023.

3 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere. For example, the signpost definition ‘district—see the Districts Act 2002, dictionary.’ means that the term ‘district’ is defined in that dictionary and the definition applies to this Act. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

4 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

5 Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

Preliminary Chapter 1

6 Application of Act This Act applies only to territory land. Note Under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), an area of land in the ACT is territory land unless it is declared to be national land. An area may be declared to be national land if it is, or is intended to be, used by or on behalf of the

Chapter 2 Object, principles and important concepts

7 Object of Act (1) The object of this Act is to support and enhance the Territory’s liveability and prosperity, protect its natural environment, and promote the well-being of residents by creating an effective, efficient, accessible and enabling planning system that— (a) is outcomes-focussed; and (b) promotes and facilitates the achievement of ecologically sustainable development; and (c) provides a scheme for public participation. (2) As part of achieving the object mentioned in subsection (1), the planning system is intended to— (a) be based on policies, processes and practices that are easy to understand; and (b) promote certainty of processes and consistent and transparent application of policies while at the same time providing scope for innovation in development proposals; and (c) provide a clearly defined hierarchy of planning strategies that inform the content of the territory plan; and (d) engage with other laws to support the efficient, appropriate and effective delivery of other related government policy objectives; and

(e) promote high standards for the built environment through an emphasis on design quality and universal design for the benefit of people with differing needs and capabilities; and (f) provide for public participation in relation to the development of planning strategies and policies, and development assessment. (3) The following matters are integral to achieving the object of this Act: (a) the ACT’s biodiversity values and its landscape setting, including— (i) the protection and conservation of biodiversity, habitat, ecological processes and natural systems; and (ii) the integration of natural, built, cultural and heritage elements; (b) high-quality, people-focussed and design-led built outcomes that respond and contribute to the distinctive characteristics of the local area, and sense of place; (c) the knowledge, culture and tradition of, and cultural and spiritual connections held by, the traditional custodians of the land; (d) planning for population growth and development of the ACT while protecting those aspects that make the ACT an attractive place in which to live;

(e) a sustainable and climate-resilient environment that is planned, designed and developed to adapt to climate change, reduce greenhouse gas emissions and achieve a net-zero greenhouse gas future using integrated mitigation and adaptation best practices and considers food and water security. Note 1 The territory planning authority must exercise its functions, if relevant, in accordance with the object of this Act (see s 18 (3) (a)). Note 2 The object of this Act must be considered in developing planning strategies, plans and policies (see s 10 (1)) and the planning strategy must be consistent with the object of this Act (see s 36 (1)). The territory plan must give effect to the planning strategy (see s 47 (b)) and the Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan (see s 52).

8 Key elements of Act (1) This Act provides a planning regime for the ACT consistent with the responsibilities of the Territory under the Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth). (2) The key elements of this Act are as follows: (a) the planning strategy—setting out the long-term strategic direction and desired future planning outcomes for the Territory; (b) district strategies—setting out the strategic direction and desired future planning outcomes for districts; (c) the territory plan—setting out the desired planning outcomes, land use zones and development assessment provisions; (d) the leasing system—setting out the tenure and use arrangements for land in the ACT;

(e) the development assessment and approval system—setting out the processes for assessing and deciding development applications and promoting desired planning outcomes for the Territory by— (i) categorising development; and (ii) providing the application and assessment requirements for different categories of development; and (iii) providing a process for making, receiving, assessing and deciding development applications; and (iv) establishing rights and responsibilities in relation to development approvals; (f) Ministerial powers—to identify priority development proposals for progressing through the development approval system; (g) the compliance and enforcement framework—which sets out a variety of offences and enforcement arrangements; (h) review processes—for internally and externally reviewing administrative decisions; (i) access to information provisions—which outline what information is available to the public and how it is accessible. (3) Subsection (2) is intended only as a guide to readers.

9 Meaning of ecologically sustainable development ecologically sustainable development means development involving the effective integration of the following principles: (a) the protection and enhancement of ecological processes and natural systems at local, territory and broader landscape levels; (b) the achievement of economic prosperity;

(c) the maintenance and enhancement of cultural, physical and social wellbeing of people and communities; (d) the precautionary principle; (e) the inter-generational equity principle. achievement of economic prosperity includes achieving a diverse, efficient, resilient and strong territory economy that allows communities to meet their needs without compromising the ability of future generations to meet their needs. maintenance and enhancement of cultural, physical and social wellbeing of people and communities includes— (a) creating and maintaining well-serviced, healthy, prosperous, liveable and resilient communities with affordable, efficient, safe and sustainable development; and (b) conserving or enhancing places of special aesthetic, architectural, cultural, heritage, historic, scientific, social or spiritual significance; and (c) providing for integrated networks of pleasant and safe public areas for aesthetic enjoyment and cultural, recreational or social interaction; and (d) accounting for the potential adverse impacts of development on climate change, and seeking to address the impacts through sustainable development and design. protection and enhancement of ecological processes and natural systems includes— (a) conserving, enhancing or restoring the life-supporting capacities of air, ecosystems, soil and water for present and future generations; and (b) conserving biological diversity and ecological integrity; and

(c) appropriately valuing and pricing environmental resources. the inter-generational equity principle means that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. the precautionary principle means that, if there is a threat of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

10 Principles of good planning (1) To achieve good planning outcomes, a person must consider the object of this Act and the following principles (the principles of good planning) in developing planning strategies, plans and policies: (a) activation and liveability principles; (b) cultural heritage conservation principles; (c) high-quality design principles; (d) housing affordability principles; (e) integrated delivery principles; (f) investment facilitation principles; (g) long-term focus principles; (h) natural environment conservation principles; (i) sustainability and resilience principles; (j) urban regeneration principles. (2) In this Act: activation and liveability principles means the following: (a) planning and design should support diverse economic and social activities, including through promoting different but compatible uses for buildings and other areas; (b) urban areas should include a range of high-quality housing options with an emphasis on living affordability; (c) urban areas should be designed to promote active travel and convenient and efficient use of public transport;

(d) districts should be planned, designed and developed to support active and healthy lifestyles and to cater for a diverse range of cultural and social activities; (e) policies should support and enhance the quality of life and wellbeing of residents. cultural heritage conservation principles means the following: (a) planning and design should promote the unique cultural heritage of the ACT by acknowledging established heritage significance in design and placemaking; (b) development should— (i) respect local heritage; and (ii) avoid direct impacts on heritage or, if a direct impact is unavoidable, ensure that the impact is justifiable and proportionate. high-quality design principles means the following: (a) development should be focussed on people and designed to— (i) reflect local setting and context; and (ii) have a distinctive identity that responds to the existing character of its locality; and (iii) effectively integrate built form, infrastructure and public spaces; and (iv) provide appropriate solar access; (b) public spaces should be designed to be used, appropriately landscaped and vegetated, and should be designed to contribute to the urban forest;

(c) built form and public spaces should be designed to be inclusive and accessible to people with differing needs and capabilities, including through the serious consideration of universal design practices; (d) developments should be planned and designed to be well-connected and integrated with surrounding development in ways that facilitate the safe, secure and effective movement of people within and through them. housing affordability principles means the following: (a) planning strategies, plans and policies should support the delivery of reforms that improve housing access, affordability and choice; (b) planning strategies, plans and policies should support more housing options for people who have a low income; (c) planning strategies, plans and policies should ensure affordable housing is close to essential services, amenities and affordable transport options, including public and active transport. integrated delivery principles means the following: (a) policies relating to planning, including those arising outside the planning system, should be coordinated to efficiently and effectively achieve planning outcomes; (b) planning, design and development should promote integrated transport connections and equitable access to services and amenities; (c) infrastructure, public spaces and facilities should be planned to meet future needs and designed to be integrated with related development; (d) built form should be durable, designed to be adaptive (including in relation to the reuse of buildings or parts of buildings) and compatible with surrounding public spaces.

investment facilitation principles means the following: (a) planning and design should be undertaken with a view to strengthening the economic prosperity of the Territory and contributing to diversification of the economy, economic security and growth; (b) planning outcomes should be achieved by facilitating coordinated approaches that promote public and private investment towards common goals. long-term focus principles means the following: (a) policy frameworks should be based around long-term priorities, be ecologically sound, and seek to promote equity between present and future generations; (b) policy frameworks should be able to respond to emerging challenges and cumulative impacts identified by monitoring, benchmarking and evaluation programs. natural environment conservation principles means the following: (a) planning and design should promote healthy and resilient ecosystems by— (i) avoiding or minimising loss of habitat and other key threatening processes for biodiversity; and (ii) considering cumulative and incremental environmental impacts; (b) planning outcomes should support the operation of environmental laws applying in the ACT; (c) policies, planning and design should integrate and promote— (i) nature-based solutions to climate change and water security; and

(ii) the valuation and maintenance of the ecosystem services and amenity provided by a healthy natural environment; (d) biodiversity connectivity and habitat values should be integrated across urban areas, including through appropriate planning for, and landscaping of, urban open space and travel corridors. sustainability and resilience principles means the following: (a) places should be planned, designed and developed to be sustainable and resilient; (b) effort should be focussed on adapting to the effects of climate change, including through mitigating the effects of urban heat, managing water supplies and achieving energy efficient urban environments; (c) policies and practices should promote the use, reuse and renewal of sustainable resources, and minimise use of resources. urban regeneration principles means the following: (a) growth should be mostly within the existing urban footprint, or in areas close to the existing urban footprint, while maintaining environmental values; (b) urban regeneration should seek to make the best use (as appropriate) of underlying or latent potential associated with land, buildings and infrastructure. key threatening process—see the Nature Conservation Act 2014, section 74.

11 Principles of good consultation (1) In undertaking consultation under this Act, a person must consider that consultation should be accessible, balanced, inclusive, meaningful, resourced, respectful, timely, transparent and understandable (principles of good consultation). (2) In this section— (a) consultation is accessible if information provided as part of the consultation, and processes for consultation, are easy to access and are presented in a variety of ways to accommodate different stakeholders; and (b) consultation is balanced if— (i) it is undertaken in a way that facilitates and encourages constructive responses from a wide range of stakeholders; and (ii) community views are considered together with the views of other stakeholders; and (c) consultation is inclusive if it is undertaken in a way that— (i) engages all stakeholders directly affected by the subject of the consultation; and (ii) aims to engage all other stakeholders affected by the subject of the consultation; and (d) consultation is meaningful if— (i) information provided as part of the consultation is adequate and well-informed to ensure all stakeholders understand the subject of, and issues relating to, the consultation and can give informed responses; and (ii) it genuinely seeks community feedback; and (iii) community views are genuinely considered and incorporated into final decisions; and

(e) consultation is resourced if the processes are appropriately supported, taking into account the significance, complexity and likely impact of the subject of the consultation; and (f) consultation is respectful if it is collaborative, genuine and courteous towards all views expressed; and (g) consultation is timely if— (i) it is undertaken early and at other appropriate times in the planning process; and (ii) it is undertaken in a way that considers the needs of stakeholders and facilitates participation; and consultation is undertaken in a way that considers holiday periods or other ACT Government consultations (iii) it allows sufficient time for stakeholders to engage with other members of their group or organisation to form a collective decision; and (iv) for a development application for a significant development—it is undertaken as early as possible; and (h) consultation is transparent if— (i) information provided as part of the consultation and processes for consultation are clear and observable; and (ii) planning decisions are made openly; and (iii) government and proponents provide reasons for decisions, including how community views have been taken into account; and

(i) information provided as part of consultation is understandable if— (i) it is clear about the overall objective of the consultation, the specific issues on which stakeholders are being consulted and what is not open to consultation or change; and (ii) it is accurate, written in plain language and presented clearly.

12 Good consultation guidelines (1) The Minister must make guidelines about principles of good consultation and how the principles are to be implemented. (2) A person required to undertake consultation under this Act must take the guidelines into consideration when undertaking the consultation. (3) A guideline is a notifiable instrument. (4) The Minister must, at least once every 5 years, decide whether the guidelines about principles of good consultation should be reviewed, taking into account whether the principles continue to reflect best practice. (5) The territory planning authority must publish on the authority website notice of the decision under subsection (4).

13 Consultation in accordance with Act taken to meet principles of good consultation Consultation for an amendment of the territory plan or a development application is taken to meet the principles of good consultation if it is undertaken in accordance with the consultation requirements that apply to the amendment or application under this Act.

14 Meaning of development and exempt development development, in relation to land, means the following: (a) building, altering or demolishing a building or other structure on (b) undertaking earthworks or other construction work on or under (c) undertaking work that would affect the landscape of the land; (d) using the land, or a building or other structure on the land; (e) subdividing or consolidating the land; (f) varying a lease relating to the land (other than a variation that reduces the rent payable to a nominal rent); (g) putting up, attaching or displaying a sign or advertising material other than in accordance with— (i) a licence issued under this Act; or (ii) a sign approval under the Public Unleased Land Act 2013, section 25 (Approval to place sign on public unleased land); or Land Act 2013, part 3. exempt development—see section 145. consolidation—see section 256 (Definitions—ch 10).

Important concepts Part 2.3 subdivision— (a) includes the following: (i) the surrender of 1 or more leases held by the same lessee, and the grant of new leases to the lessee to subdivide the parcels of land in the surrendered leases; (ii) the subdivision of land under the Unit Titles Act 2001; (iii) the subdivision of land in future urban areas; but (b) does not include a sublease.

15 Meaning of use use, of land, or of a building or other structure on land, means any of (a) begin a new use of the land, building or other structure; (b) continue a use of the land, building or other structure; Note Development approval is not required for continuing use lawfully commenced (see s 405 and s 408). (c) change a use of the land, building or other structure, whether by adding a use, stopping a use and substituting another use or otherwise.

Chapter 3 Territory planning authority and chief planner

16 Establishment of authority (1) The Territory Planning Authority is established. (2) The territory planning authority is a corporation. (3) The chief planner is the territory planning authority.

17 Authority represents the Territory (1) Anything done in the name of, or for, the territory planning authority or the chief planner in exercising a function of the authority is taken to have been done for, and binds, the Territory. (2) The territory planning authority has the same status, privileges and immunities as the Territory so far as it represents the Territory.

Functions of territory planning authority Part 3.2 Part 3.2 Functions of territory planning

18 Authority functions (1) The territory planning authority has the following functions: (a) to prepare and administer the territory plan; (b) to continually review the territory plan, propose amendments and consider amendments initiated by proponents and the Minister, as necessary; (c) to plan and regulate the development of land; (d) to advise on planning and land policy, including the broad spatial planning framework for the ACT and the achievement of desired future planning outcomes; (e) to promote and implement the planning strategy and district strategies; (f) to promote high-quality design and good planning outcomes; (g) to maintain the digital cadastral database under the Districts Act 2002; (h) to make available land information; (i) to grant, administer, vary and end leases on behalf of the Executive; (j) to grant licences over unleased land; (k) to decide applications for approval to undertake development; (l) to make controlled activity orders under part 12.3 (Controlled activity orders) and take other compliance and enforcement action under this Act and other territory laws; (m) to provide planning services, including services to entities outside the ACT;

Part 3.2 Functions of territory planning authority (n) to review its own decisions and participate in external review processes; (o) to provide opportunities for participation in planning and decision-making processes; (p) to promote public education about, and understanding of, the planning system, including by providing easily accessible public information and documentation on planning and land use. (2) The territory planning authority may exercise any other function given to the authority under this Act, another territory law or a Commonwealth law. Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196). (3) The territory planning authority must exercise its functions, if relevant— (a) in accordance with the object of this Act; and (b) taking into account the principles of good planning; and (c) taking into consideration the statement of planning priorities made by the Minister.

19 Authority to comply with directions The territory planning authority must comply with any directions given to the authority under this Act or another territory law.

Operations of territory planning authority Part 3.3 Part 3.3 Operations of territory planning

20 Ministerial directions to authority (1) The Minister may give a written direction to the territory planning (a) about the general policies the authority must follow; or (b) requiring the authority to prepare an amendment of the territory plan or review the plan. Note If s 64 or s 69 applies to a draft major plan amendment, the Minister may not do anything under par (b) that would be inconsistent with the territory plan if it were amended in accordance with the major plan amendment. (2) Before giving a direction, the Minister must— (a) tell the territory planning authority about the proposed direction; and (b) give the authority a reasonable opportunity to comment on the proposed direction; and (c) consider any comment made by the authority. (3) A direction is a notifiable instrument. (4) A direction must be published on the authority website.

21 Assembly may recommend directions to authority (1) The Legislative Assembly may, by resolution, recommend that the Minister give the territory planning authority a stated direction under section 20. (2) The Minister must consider the recommended direction and either— (a) direct the territory planning authority under section 20; or

Part 3.3 Operations of territory planning authority (b) tell the Legislative Assembly that the Minister does not propose to direct the authority as recommended and give reasons for the decision. (3) A direction mentioned in subsection (2) (a) may be in accordance with the Legislative Assembly’s resolution or as amended by the Minister.

22 Provision of planning services to others—Ministerial The territory planning authority may provide planning services to somebody other than the Territory only with the Minister’s written

23 Reports by authority to Minister (1) The territory planning authority must give the Minister a report, or information about its operations, required by the Minister. (2) The report must be prepared in the form (if any) that the Minister requires. (3) This section is in addition to any other provision about the giving of reports or information by the territory planning authority.

24 Authority’s role in cohesive urban renewal and suburban land development The territory planning authority must work with the city renewal authority and suburban land agency to encourage cohesive planning and development of land.

Operations of territory planning authority Part 3.3

25 Delegation by authority (1) The territory planning authority may delegate— (a) the authority’s functions under this Act or another territory law to a public servant or a member of the authority’s staff; and (b) the authority’s functions under part 10.13 (Licences for unleased land) in relation to an area of land to the custodian of the land. (2) The territory planning authority may also delegate the function of granting leases on behalf of the Executive to the following: (a) the city renewal authority; (b) the suburban land agency. Note For laws about delegations, see the Legislation Act, pt 19.4.

26 Appointment of chief planner (1) The Executive must appoint a person as the Chief Planner. (2) The Executive must not appoint a person as the chief planner unless satisfied that the person— (a) has the management and planning experience and expertise to exercise the functions of the chief planner; and (i) has qualifications that are appropriate to exercise the functions of the chief planner; or (ii) is eligible to be registered with a representative body. (3) An appointment must be for a term of not longer than 5 years. (4) An appointment is a notifiable instrument. Note For laws about appointments, see the Legislation Act, pt 19.3. representative body means an entity that has as a main purpose the promotion of the interests of professionals with qualifications that are appropriate to exercise the functions of the chief planner.

27 Chief planner’s conditions of appointment The chief planner’s conditions of appointment are the conditions agreed between the Executive and the chief planner, subject to any determination under the Remuneration Tribunal Act 1995.

Chief planner Part 3.4

28 Chief planner must avoid conflict of interest If the chief planner has a financial or other personal interest that conflicts or may conflict, or may be perceived to conflict, with the functions of the chief planner or the territory planning authority, the chief planner must disclose, in writing, the nature of the interest and the conflict or potential conflict to the Executive.

29 Chief planner must not do inconsistent work etc The chief planner must not engage in— (a) any other paid activity without the Minister’s written approval; or (b) any unpaid activity that is inconsistent with the functions of the chief planner or the territory planning authority.

30 Functions of chief planner The chief planner may exercise the functions given to the chief planner under this Act or another territory law.

31 Suspending chief planner’s appointment (1) The Executive may suspend the chief planner— (a) for misbehaviour; or (b) for physical or mental incapacity, if the incapacity affects the exercise of the chief planner’s functions; or (c) for failing, without reasonable excuse, to comply with section 28 (Chief planner must avoid conflict of interest); or (d) for failing, without reasonable excuse, to comply with section 29 (Chief planner must not do inconsistent work etc); or (e) if the chief planner is absent, without approval or reasonable excuse, for 14 consecutive days or for 28 days in any 12-month period; or

(f) if the chief planner is convicted, or found guilty, in Australia of an offence punishable by imprisonment for at least 1 year; or (g) if the chief planner is convicted, or found guilty, outside Australia of an offence that, if it had been committed in the ACT, would be punishable by imprisonment for at least 1 year. (2) If the Executive suspends the chief planner, the Executive must give the chief planner written notice of the suspension and a copy of the statement of reasons for the suspension. Note For what must be included in a statement of reasons, see the Legislation Act, s 179. (3) The suspension takes effect when the notice and statement are given to the chief planner under subsection (2). (4) The Executive must present to the Legislative Assembly the statement of reasons for the suspension not later than the first sitting day after the day the chief planner is suspended. (5) The Legislative Assembly may, not later than 6 sitting days after the day the statement is presented to the Assembly, make a resolution requiring the Executive to end the chief planner’s appointment. (6) The chief planner’s suspension ends— (a) if the Executive does not comply with subsection (4)—at the end of the day the Executive should have presented to the Legislative Assembly the statement mentioned in that subsection; or (b) if the Assembly does not pass a resolution mentioned in subsection (5) before the end of the 6 sitting days—at the end of the 6th sitting day. (7) The chief planner is entitled to be paid salary and allowances while suspended.

Chief planner Part 3.4

32 Ending chief planner’s appointment The Executive must end the chief planner’s appointment if— (a) the Legislative Assembly passes a resolution under section 31 (5); or (b) the chief planner becomes bankrupt or personally insolvent.

33 Authority’s staff (1) The chief planner may employ staff for the territory planning authority on behalf of the Territory. (2) The territory planning authority staff must be employed under the Public Sector Management Act 1994. Note The Public Sector Management Act 1994, div 8.2 applies to the chief planner in relation to the employment of staff (see that Act, s 152).

34 Arrangements for staff The chief planner may arrange with the head of service to use the services of a public servant. Note The head of service may delegate powers in relation to the management of public servants to a public servant or another person (see Public Sector Management Act 1994, s 18).

35 Authority consultants (1) The territory planning authority may engage consultants. (2) However, the territory planning authority must not enter into a contract of employment with a consultant. (3) The conditions of a consultant’s engagement are the conditions agreed between the chief planner and the consultant.

Part 4.1 Strategic and spatial planning— general

36 Planning strategy (1) The Executive must make a strategy for the ACT (the planning strategy), consistent with the object of this Act, stating— (a) the long-term planning policy and goals for the ACT; and (b) an overarching spatial vision; and (c) strategic directions and desired future planning outcomes. Note In making the planning strategy, the Executive must consider the principles of good planning (see s 10). (2) The planning strategy may include other government strategies and policies if appropriate. (3) The Executive must undertake public consultation before making the planning strategy. Note In undertaking consultation under this Act, the Executive must consider the principles of good consultation (see s 11). (4) The planning strategy is a notifiable instrument. (5) The planning strategy must be published on the authority website.

37 Consideration of planning strategy (1) The planning strategy must be considered by— (a) the territory planning authority under the following provisions: (i) section 58 (Proponent-initiated amendment— consideration of application); (ii) section 85 (3) (Making minor plan amendments); (iii) section 91 (2) (a) (Review of territory plan); and (b) the Minister under the following provisions: (i) section 42 (1) (Statement of planning priorities); (ii) section 70 (3) (a) (Certain draft major plan amendments given to Minister under s 67—action by Minister); (iii) section 75 (3) (c) (Minister’s powers in relation to draft major plan amendments); (iv) section 90 (2) (a) (v) (Consideration of whether review of territory plan necessary); and (c) the Executive under section 41. (2) The planning strategy is not a relevant consideration for any other decision under this Act by the territory planning authority, the Minister or another entity under any of the following chapters: (a) chapter 6 (Significant development); (b) chapter 7 (Development assessment and approvals); (c) chapter 8 (Territory priority projects).

38 District strategy (1) The Executive may make a plan for a district (a district strategy) that states the long-term planning policy and goals for the district, consistent with the planning strategy. Note In making a district strategy, the Executive must consider the principles of good planning (see s 10). (2) A district strategy may— (a) include strategies, spatial policies and desired future planning outcomes for the district to guide and manage change in the district; and (b) set out principles and policies for development of areas within the district, including future urban areas; and (c) identify areas within the district for future detailed planning; and Note Detailed planning may be done through a planning and response report. (d) include other government strategies and policies applying to the district if appropriate. (3) The Executive must undertake public consultation before making a district strategy. Note In undertaking consultation under this Act, the Executive must consider the principles of good consultation (see s 11). (4) A district strategy is a notifiable instrument. (5) A district strategy must be published on the authority website.

39 Planning and response report (1) The territory planning authority may propose amendments to a district strategy in a detailed report for the district or part of the district (a planning and response report). Note If related amendments to the territory plan are needed, the authority may be required to prepare a supporting report under s 61 (1).

(2) A planning and response report may also be prepared by a prescribed entity for the territory planning authority’s approval. (3) The entity preparing a planning and response report must undertake consultation on the substance of the report. (4) A regulation may prescribe additional requirements for preparing a planning and response report. Examples—additional requirements 1 requirements for planning and response reports generally, including structure and content requirements 2 requirements for planning and response reports at different spatial scales 3 requirements for who may prepare planning and response reports at different spatial scales

40 Amendment of district strategy The Minister may amend a district strategy by approving an amendment proposed in a planning and response report if satisfied (a) there has been sufficient public consultation on the proposed (b) the amendment is consistent with the planning strategy.

41 Review of planning and district strategies (1) The Executive must, at least once every 5 years after making the planning strategy or a district strategy, consider whether the strategy should be reviewed. (2) In deciding whether the strategy should be reviewed, the Executive must consider whether the strategy continues to reflect the long-term planning policy and goals for the ACT.

(3) After the Executive considers whether the strategy should be reviewed, the Minister must prepare a notice stating— (a) that the Executive has considered whether the strategy should be reviewed; and (b) the Executive’s decision on whether the strategy should be reviewed; and (c) the date of the Executive’s decision; and (d) if the Executive decides that the strategy should be reviewed— the scope of the review. (4) A notice under subsection (3) is a notifiable instrument. (5) If the Executive decides that the strategy should be reviewed, the Executive must arrange the review.

42 Statement of planning priorities (1) The Minister may give the territory planning authority a written statement that sets out the priorities arising from the planning strategy (the statement of planning priorities). (2) The statement of planning priorities must identify the actions to be taken in the short to medium term to achieve the planning priorities. (3) To remove any doubt, the statement of planning priorities does not authorise a person to whom section 52 (Effect of territory plan) applies to do anything inconsistent with the territory plan. The statement of planning priorities may include policy material inconsistent with the territory plan, but the plan would have to be amended before the policy could be implemented. (4) The statement of planning priorities is a notifiable instrument. (5) The statement of planning priorities must be published on the

43 Subdivision design applications (1) A development application for a subdivision development proposal (a subdivision design application)— (a) must include a detailed plan for the proposal that is consistent with the territory plan; and (b) must identify— (i) the boundaries of the subdivision and individual blocks within the subdivision; and (ii) if the subdivision is in a future urban area—the existing and proposed land use zones identified in the territory plan for the area; and (iii) if the subdivision is not in a future urban area—the existing land use zones in the subdivision. Note 1 A subdivision design application must also be accompanied by information and documents sufficient to address each provision of the territory plan relevant to the proposed development (see s 166 (2) (c) (i)). Note 2 A proponent may be required to prepare a subdivision design application at the district or division scale, or at spatial scales within the district scale (eg an area within a division proposed for redevelopment and land use change, such as a town centre, or group centre). (2) A subdivision design application may include any matter prescribed by regulation. subdivision development proposal— (a) means a development proposal— (i) to create or consolidate blocks; or

Subdivision design applications Part 4.2 (ii) to create or remove roads; or (iii) involving land use zone, design and construction requirements for future development on the land the subject of the application; but (b) does not include a development proposal that is limited to changing a block boundary or subdividing land under the Unit Titles Act 2001.

44 Effect of approval of subdivision design application (1) The territory planning authority must, within a reasonable time after approving a subdivision design application under section 185 (Deciding development applications), amend the territory plan under section 85 (Making minor plan amendments)— (a) if the land the subject of the application is in a future urban area—to identify the land use zones that will apply to the land, consistent with the application; and (b) to incorporate any provision that— (i) was included in the application under section 43 (2); and (ii) the authority determined should be incorporated in the territory plan; and (c) to incorporate any ongoing provision that— (i) was not included in the application under section 43 (2); and (ii) the authority determined should be incorporated in the (2) If the territory plan is amended under subsection (1) and the land the subject of the subdivision design application is in a future urban area, the land ceases to be in a future urban area.

Part 5.1 Establishment, object, key components and effect Part 5.1 Establishment, object, key components and effect 45 Territory plan (1) There must be a territory plan that applies to the ACT. Note The territory plan can be amended (see pt 5.2 and pt 5.3). (2) The territory plan is a notifiable instrument.

46 Object of territory plan The object of the territory plan is to ensure, in a manner not inconsistent with the national capital plan, that the planning and development of the ACT provides the people of the ACT with an attractive, safe and efficient environment in which to live, work and have their recreation.

47 Territory plan to give effect to strategic planning outcomes The territory plan— (a) must promote the principles of good planning; and (b) must give effect to the planning strategy and district strategies; and Note The object of this Act must be considered in developing planning strategies, plans and policies (see s 10 (1)) and the planning strategy must be consistent with the object of this Act (see s 36 (1)). (c) must take into account and may give effect to relevant outcomes related to planning contained in other government strategies and policies.

Establishment, object, key components and effect Part 5.1

48 Contents of territory plan (1) The territory plan must— (a) include a map that identifies districts and designates land use zones; and (b) set out the planning principles and policies for giving effect to the object of the plan, including— (i) the policy outcomes to be achieved by the plan; and (ii) requirements and outcomes against which development proposals are assessed; and (iii) provisions that support compliance with requirements for undertaking development. (2) The territory plan may include anything else relevant to the object of the territory plan. (3) The territory plan may apply, adopt or incorporate— (a) a law of another jurisdiction; or (b) an instrument as in force from time to time, unless the territory plan provides otherwise. (4) The Legislation Act, section 47 (6) does not apply to an instrument applied, adopted or incorporated under subsection (3).

49 Format of territory plan and supporting material (1) In preparing the territory plan, the territory planning authority must endeavour to make the territory plan, and any amendments of the plan, easy for users of the plan to read and understand.

Part 5.1 Establishment, object, key components and effect (2) The territory plan may be supported by background material, guides, advisory notes or anything else (the supporting material) that the territory planning authority considers will help readers to understand and apply the territory plan. (3) The supporting material must be published on the authority website.

50 Design guides (1) The Minister may prepare design guidance for development proposals (a design guide) to support the territory plan. (2) A design guide is a notifiable instrument. (3) A design guide must be published on the authority website.

51 Technical specifications (1) The chief planner may make technical specifications to support design guides and the territory plan. (2) Technical specifications are a notifiable instrument. (3) Technical specifications must be published on the authority website.

52 Effect of territory plan The Territory, the Executive, a Minister or a territory authority must not do any act, or approve the doing of an act, that is inconsistent with the territory plan. Note The territory plan has no effect to the extent that it is inconsistent with the national capital plan (see Australian Capital Territory (Planning and Land Management) Act 1988 (Cwlth), s 26).

Preliminary Division 5.2.1 Part 5.2 Territory plan—major plan

53 Outline of major plan amendment process (1) A major plan amendment starts when the territory planning authority prepares a draft major plan amendment— (a) on application by an interested person (see s 57 (1)); or (b) on the authority’s own initiative (see s 60 ); or (c) in accordance with a direction by the Minister under section 20 (see s 60 (2)). (2) After preparing a draft major plan amendment, the territory planning authority must prepare a consultation notice (see s 63) that invites comments on the draft amendment and, when published on the authority website, may give the draft amendment interim effect (see s 64). (3) The territory planning authority— (a) may revise or withdraw a draft major plan amendment after the end of consultation (see s 66); and (b) unless the draft major plan amendment is withdrawn, must give the draft amendment to the Minister for approval (see s 67). (4) If the territory planning authority gives a draft major plan amendment to the Minister for approval, the territory planning authority must prepare a public availability notice (see s 68) that states that the draft amendment is available for public inspection and, when published on the authority website, may give the draft amendment interim effect (see s 69).

(5) After receiving a draft major plan amendment, the Minister may do any of the following (see s 70): (a) refer the draft amendment to the relevant Assembly committee for a report on the draft amendment; (b) withdraw the draft amendment; (c) give the draft amendment to the territory planning authority for further consultation or revision. (6) After approving a draft major plan amendment, the Minister must present the amendment to the Legislative Assembly (see s 77) and the Assembly may completely or partly reject the amendment (see s 78). (7) A major plan amendment commences on the day fixed by the Minister (see s 80 and s 81 (5) (a)). (8) This section is intended only as a guide to readers.

54 Application—pt 5.2 (1) This part does not apply to amendments of the territory plan that are minor plan amendments under part 5.3. minor plan amendment—see section 84.

55 Definitions—pt 5.2 background papers, in relation to a draft major plan amendment or major plan amendment—each of the following is a background paper in relation to the proposed amendment: (a) a copy of each of the following documents: (i) any relevant direction of the Minister under section 20;

Preliminary Division 5.2.1 (ii) any comment received during consultation under section 63 (1) (c) (Public consultation—notification and availability of draft major plan amendments etc); (iii) any relevant supporting report for the proposed amendment; (b) a statement, by the territory planning authority, of the reasons for any inconsistency between the draft plan and any of the (i) a direction mentioned in paragraph (a) (i); (ii) a recommendation in a supporting report for the proposed amendment; (c) any other document— (i) considered by the authority to be necessary or useful in explaining the proposed amendment; or (ii) designated by the authority, in writing, as a background paper. consultation comments, in relation to a draft major plan amendment—see section 63 (1) (c) (i). consultation notice, for a draft major plan amendment—see section 63 (1) (c). consultation period means a stated period of at least 30 working days. corresponding major plan amendment, for a draft major plan amendment, means the major plan amendment developed from the draft major plan amendment.

draft major plan amendment— (a) in relation to an application for a proponent-initiated amendment—see section 59 (2); and (b) in relation to an amendment prepared by the territory planning authority on its own initiative or in response to a direction by the Minister under section 20—see section 60 (1). interested person, in relation to land—see section 56. major plan amendment means a draft major plan amendment approved by the Minister under section 75 (2) (a) (Minister’s powers in relation to draft major plan amendments). proponent-initiated amendment—see section 57. public availability notice, for a draft major plan amendment—see section 68 (a). supporting report, for a proponent-initiated amendment, draft major plan amendment or major plan amendment, means a detailed report setting out all of the following: (a) the need for the proposed amendment; (b) the positive and negative impacts of the proposed amendment; (c) a statement about how the proposed amendment would give effect to the planning strategy and— (i) any relevant district strategy; or (ii) for a supporting report prepared for a planning and response report—the proposed district strategy; (d) a statement about how the proposed amendment would be consistent or inconsistent with relevant planning outcomes contained in other government strategies and policies;

Initiation of major plan amendments Division 5.2.2 (e) any consultation undertaken by the interested person who proposed the amendment, including with relevant entities who may have an interest in the proposed amendment.

56 Meaning of interested person—pt 5.2 For this part, a person is an interested person in relation to land if— (a) the person is the lessee or custodian of the land; or (b) the person is acting with the consent of the lessee or custodian of the land.

57 Proponent-initiated amendment—application (1) An interested person in relation to land may apply to the territory planning authority for an amendment of the territory plan (a proponent-initiated amendment) in relation to that land. (2) The application must— (a) include— (i) the applicant’s name and address; and (ii) if the applicant is not the lessee or custodian of the land— the name of the lessee or custodian; and (b) identify the land that is the subject of the proposed amendment; and (c) include a description of the change to the territory plan the applicant is seeking from the amendment; and (d) include a supporting report for the proposed amendment. (3) The applicant may withdraw the application any time before it is accepted by the territory planning authority.

58 Proponent-initiated amendment—consideration of (1) The territory planning authority must, within 3 months after the day an interested person makes an application for a proponent-initiated amendment under section 57— (a) accept the application; or (b) refuse to accept the application. Note By accepting the application, the authority is not taken to support the application and is not bound to proceed with the amendment (see s 59 (3)). (2) In considering whether to accept the application, the territory planning authority must have regard to each of the following: (a) the planning strategy; (b) any relevant district strategy; (c) any current or proposed amendments of, or of policies in, the (d) the statement of planning priorities; (e) anything else the authority considers relevant to the amendment. (3) The authority may, by written notice, require the applicant to give additional information in relation to the application. (4) The notice must state the time, at least 20 working days, within which the applicant must give the territory planning authority the additional (5) The territory planning authority may refuse to accept the application if the additional information is not given to the authority within the stated time.

Initiation of major plan amendments Division 5.2.2

59 Proponent initiated amendment—acceptance of (1) If the territory planning authority accepts an application for a proponent-initiated amendment under section 57, it must publish the following on the authority website when the draft amendment is published under section 63 (1) (Public consultation—notification and availability of draft major plan amendments etc): (a) the decision to accept the application; (b) the application; (c) any additional information, and the request for that information, mentioned in section 58 (3). (2) After accepting the application, the territory planning authority must prepare a document to amend the territory plan (a draft major plan amendment). (3) However, the territory planning authority— (a) is not taken to support the application by preparing the draft major plan amendment; and (b) must continue to assess the merits of the application; and (c) is not bound to proceed with the amendment.

60 Authority or Minister-initiated amendments (1) The territory planning authority may, on the authority’s own initiative, prepare a document to amend the territory plan (a draft major plan amendment). (2) The territory planning authority must prepare a draft major plan amendment if the Minister gives the authority a direction under section 20 (1) (b) (Ministerial directions to authority).

61 Supporting report for draft major plan amendment (1) If the territory planning authority prepares a draft major planning amendment (other than a draft amendment mentioned in subsection (2)), the authority must prepare a supporting report for the (2) If the territory planning authority prepares a draft major planning amendment after accepting an application for a proponent-initiated amendment, the authority must consider the supporting report included with the application for the amendment.

62 Draft major plan amendments—consultation The territory planning authority must consult with each of the following in relation to a draft major plan amendment: (a) the national capital authority; (b) the conservator of flora and fauna; (c) the environment protection authority; (d) the heritage council; (e) each referral entity; (f) if the draft amendment would, if made, be likely to affect unleased land or leased public land—each custodian of the land likely to be affected.

63 Public consultation—notification and availability of draft major plan amendments etc (1) After preparing a draft major plan amendment, the territory planning authority must publish the following on the authority website: (a) the draft amendment;

Consultation Division 5.2.3 (b) the supporting report for the draft amendment; (c) a notice that complies with section 64 (a consultation notice)— (i) inviting people to give written comments (consultation comments) about the draft amendment to the authority during the consultation period for the draft amendment; and (ii) stating the effect of section 65 (Public inspection of comments on draft major plan amendments). (2) However, the territory planning authority is not required to publish a major draft amendment if satisfied that publication of the draft (a) would disclose a trade secret; or (b) would, or could reasonably be expected to— (i) endanger the life or physical safety of anyone; or (ii) lead to damage to, or theft of, property. (3) The territory planning authority may extend the consultation period for the draft major plan amendment. (4) If the territory planning authority extends the consultation period for the draft major plan amendment, it must— (a) publish a notice (an extension notice) on the authority website about the extended consultation period; and (b) for a draft amendment prescribed by regulation—give a copy of the extension notice to each person prescribed by regulation. (5) A draft major plan amendment is not invalid only because the territory planning authority has not complied with subsection (4) (b).

(6) This section does not apply in relation to a draft major plan (a) if, in preparing a planning and response report, an entity has undertaken consultation similar to that required under this section in relation to the substance of the draft amendment; or (b) that has been revised by the territory planning authority in accordance with a request under section 75 (2) (c) (ii) (Minister’s powers in relation to draft major plan amendments); or (c) if, in developing a government policy or strategy, a government entity has undertaken consultation similar to that required under this section in relation to the substance of the draft amendment; or (d) if the Minister consulted on the draft amendment under section 218 (3) (Declaration of territory priority projects) in relation to a proposed territory priority project declaration. Examples—par (c) 1 the amendment was included as part of a consultation process undertaken by another government entity as a consequence of consulting on a new climate change strategy 2 the amendment was included in a draft review report prepared by the territory planning authority under s 91 and consulted on in accordance with that section

64 Public consultation—notice of interim effect etc (1) A consultation notice must state whether or not subsection (2) applies in relation to the draft major plan amendment, or part of the draft

Consultation Division 5.2.3 (2) The Territory, the Executive, a Minister or a territory authority must not, during the defined period or a period stated in the consultation notice, whichever is shorter, do or approve the doing of anything that would be inconsistent with the territory plan if it were amended in accordance with the draft major plan amendment. Note The Territory, the Executive, a Minister or a territory authority must also not do anything that is inconsistent with the territory plan (see s 52). (3) A consultation notice that states that subsection (2) applies in relation to the draft major plan amendment, or part of the draft amendment, must also state— (a) the effect of subsection (2); and (b) a period (not longer than 12 months) that is the maximum period during which the draft amendment, or part of the draft amendment, is to have interim effect. (4) A consultation notice that states that subsection (2) applies in relation to the draft major plan amendment, or part of the draft amendment, is a notifiable instrument. defined period, for a draft major plan amendment, means the period— (a) starting on the day the consultation notice for the draft amendment is notified (the notification day) as required under subsection (4); and (b) ending on the day the earliest of the following happens: (i) the day the public availability notice for the draft amendment is published on the authority website as required under section 68;

Division 5.2.4 Action after consultation about draft major plan amendments (ii) if the draft amendment, or the corresponding major plan amendment, is withdrawn under section 66 (1) (b) (Revision and withdrawal of draft major plan amendments) or section 75 (2) (b) (Minister’s powers in relation to draft major plan amendments)—the day it is withdrawn; (iii) the day that is 12 months after the notification day.

65 Public inspection of comments on draft major plan (1) This section applies to written comments about a draft major plan (a) given to the territory planning authority in response to the invitation in the consultation notice for the draft amendment under section 63 (1) (c) (i) or otherwise; or (b) received from the national capital authority. (2) The territory planning authority must publish the comments on the authority website for at least 30 working days, starting 10 working days after consultation period for the draft amendment ends. Division 5.2.4 Action after consultation about draft

66 Revision and withdrawal of draft major plan amendments (1) After the end of the consultation period for a draft major plan amendment, the territory planning authority may— (a) revise the draft amendment; or (b) withdraw the draft amendment. (2) In revising or withdrawing a draft major plan amendment, the territory planning authority must consider written comments (including consultation comments) about the draft amendment received from any entity, including the national capital authority.

Draft major plan amendments given to Minister Division 5.2.5 (3) The territory planning authority may, at any time before a draft major plan amendment is given, or given again, to the Minister, revise the draft amendment to correct a formal error. (4) The withdrawal of a draft major plan amendment must include a statement that the interim effect of the draft amendment ends on the day the draft amendment is withdrawn. (5) The territory planning authority must publish on the authority website notice of the withdrawal of a draft major plan amendment on the same day, or as soon as practicable after, the authority prepares the withdrawal. Division 5.2.5 Draft major plan amendments given to Minister

67 Draft major plan amendments to be given to Minister etc (1) This section applies to a draft major plan amendment— (a) if— (i) the consultation period for the draft amendment has ended; and (ii) the territory planning authority has not withdrawn the draft amendment under section 66; and (b) if the draft amendment has been revised under section 66—as revised. (2) This section also applies to a draft major plan amendment in relation to which section 63 (Public consultation—notification and availability of draft major plan amendments etc) does not apply. Note Section 63 (6) provides that s 63 does not apply in relation to certain draft major plan amendments.

Division 5.2.5 Draft major plan amendments given to Minister (3) The territory planning authority must give the draft major plan amendment to the Minister for approval, together with the following documents: (a) the background papers relating to the draft amendment; (b) a written report about the authority’s consultation with the (i) the public; (ii) the national capital authority; (iii) the conservator of flora and fauna; (iv) the environment protection authority; (v) the heritage council; (vi) if the draft amendment would, if made, be likely to affect unleased land or leased public land—each custodian of the land likely to be affected; (c) a copy of written comments (including consultation comments) about the draft amendment received from an entity mentioned in paragraph (b). Note The Minister must give a copy of the documents given to the Minister under this section to the relevant Assembly committee (see s 70). (4) The written report mentioned in subsection (3) (b) must include the issues raised in any consultation comments about the draft major plan

68 Public notice of documents given to Minister The territory planning authority must publish on the authority (a) a notice stating that the documents mentioned in section 67 (3) (including the draft major plan amendment) are available on the website for public inspection (a public availability notice); and

Draft major plan amendments given to Minister Division 5.2.5 (b) for the period stated in the public availability notice—copies of the documents mentioned in section 67 (3).

69 Public availability notice—notice of interim effect etc (1) A public availability notice must state whether or not subsection (2) applies in relation to the draft major plan amendment, or part of the (2) The Territory, the Executive, a Minister or a territory authority must not, during the defined period, do or approve the doing of anything that would be inconsistent with the territory plan if it were amended in accordance with the draft major plan amendment. Note The Territory, the Executive, a Minister or a territory authority must also not do anything that is inconsistent with the territory plan (see s 52). (3) A public availability notice that states that subsection (2) applies in relation to the draft major plan amendment, or part of the draft amendment, must also state the effect of subsection (2). (4) A public availability notice that states that subsection (2) applies in relation to the draft major plan amendment, or part of the draft amendment, is a notifiable instrument. defined period, for a draft major plan amendment, means the period— (a) starting on the day the public availability notice for the draft amendment is notified (the notification day) under subsection (4); and (b) ending on the earliest of the following days: (i) the day the corresponding major plan amendment, or part of it, commences; Note See s 80 (2) and s 81 (5) (a) for when the amendment, or part of it, commences.

Division 5.2.6 Consideration of draft major plan amendments by relevant Assembly (ii) if the corresponding major plan amendment is rejected by the Legislative Assembly—the day it is rejected; (iii) if the corresponding major plan amendment is withdrawn in accordance with a requirement under section 75 (2) (b) or section 81 (5) (b)—the day it is withdrawn; (iv) the day that is 18 months after the notification day. Division 5.2.6 Consideration of draft major plan amendments by relevant Assembly

70 Certain draft major plan amendments given to Minister under s 67—action by Minister (1) This section applies if the Minister is given a draft major plan amendment under section 67. (2) Within 5 working days after the day the public availability notice for the draft major plan amendment is published on the authority website, the Minister must refer the draft amendment to the relevant Assembly committee, together with— (a) the documents mentioned in section 67 (3) relating to the draft (b) a request that the committee decide whether it will prepare a report on the draft amendment.

71 Consideration of draft major plan amendments by relevant Assembly committee (1) If the Minister refers a draft major plan amendment to the relevant Assembly committee under section 70 (2), the committee must tell the Minister, within 15 working days after the day the draft amendment is referred to the committee, whether or not it will prepare a report on the draft amendment.

Consideration of draft major plan amendments by relevant Assembly Division 5.2.6 (2) If the committee has not told the Minister, within the 15-day period, whether it will prepare a report, it is taken to have decided not to prepare a report. (3) Without limiting the matters the relevant Assembly committee may include in a report on the draft major plan amendment, the committee must include in the report— (a) a recommendation that the Minister approve the draft amendment; or (b) another recommendation about the draft amendment. (4) Subsection (5) applies if— (a) the draft amendment is to facilitate the development of a territory priority project; and (b) if the committee decides to prepare a report on the draft amendment—the Minister is satisfied that the risk of delay to the development of the territory priority project will be minimised if the committee’s report on the draft amendment were given to the Minister earlier than 6 months after the day it is referred to the committee. (5) When the Minister refers the draft major plan amendment to the relevant Assembly committee, the Minister may request that, if the committee decides to prepare a report, the report be completed and given to the Minister within a period stated by the Minister, that is at least 3 months and not more than 6 months after the day the draft amendment is referred to the committee.

72 Committee decides not to report relevant Assembly committee under section 70 (2); and

Division 5.2.6 Consideration of draft major plan amendments by relevant Assembly (b) the committee has decided, or is taken to have decided, not to prepare a report on the draft amendment. (2) The Minister must take action in accordance with section 75 in relation to the draft major plan amendment.

73 Committee reports on draft major plan amendments relevant Assembly committee under section 70 (2); and (b) the committee has decided to prepare a report on the draft (2) The Minister— (a) unless section 74 applies—must not take action under section 75 in relation to the draft major plan amendment until the relevant Assembly committee has reported on the draft amendment; and (b) after the committee reports on the draft amendment—must take action under section 75 in relation to the draft amendment.

74 Committee fails to report promptly on draft major plan relevant Assembly committee under section 70 (2) (Certain draft major plan amendments given to Minister under s 67—action by Minister); and (b) the committee has decided to prepare a report on the draft major plan amendment; and

Consideration of draft major plan amendments by relevant Assembly Division 5.2.6 (c) the committee has not reported on the draft amendment by the end of— (i) if the Minister’s referral is made within 4 months before a general election of members of the Legislative Assembly— (A) if the Minister stated a period under section 71 (5) (Consideration of draft major plan amendments by relevant Assembly committee)—the stated period commencing on the first sitting day of the Legislative Assembly after the general election; or (B) in any other case—6 months after the first sitting day of the Legislative Assembly after the general election; or (ii) in any other case— (A) if a period was stated by the Minister under section 71 (5)—the stated period; or (B) in any other case—6 months after the day the draft major plan amendment is referred to the committee. (2) The Minister may take action in accordance with section 75 in relation to the draft major plan amendment, even though the relevant Assembly committee has not reported on the amendment.

Division 5.2.7 Ministerial and Legislative Assembly action on draft major plan Division 5.2.7 Ministerial and Legislative Assembly action on draft major plan 75 Minister’s powers in relation to draft major plan (a) the Minister is required to take action under this section; or (b) the Minister decides under section 74 to take action under this section; or (c) the Minister revokes the approval of a draft major plan amendment under section 77 (4). Note See s 72 (2), s 73 (2) (b) and s 76 (4) for when the Minister is required to take action under this section. (2) The Minister must— (a) approve the draft major plan amendment in the form given; or Note A draft major plan amendment approved by the Minister is a major plan amendment (see s 55, def major plan amendment). (b) withdraw the draft major plan amendment; or (c) return the draft major plan amendment to the territory planning authority and direct the authority to do 1 or more of the (i) conduct further stated consultation; (ii) consider any revision suggested by the Minister; (iii) revise the draft amendment in a stated way.

Ministerial and Legislative Assembly action on draft major plan Division 5.2.7 (3) Before taking action under subsection (2), the Minister must consider (a) the documents given to the Minister under section 67 (3) (Draft major plan amendments to be given to Minister etc); (b) any recommendation made by the relevant Assembly committee in relation to the draft amendment, or related documents, referred to the committee under section 70 (2) (a) or otherwise; (c) the planning strategy; (d) any relevant district strategy. Note For par (b), the Minister must not take action under this section in some circumstances if the committee has not reported (see s 73 and s 74). (4) The Minister may approve a draft major plan amendment only if the draft amendment is not inconsistent with the planning strategy or any relevant district strategy. (5) If the Minister approves a draft major plan amendment, the Minister must prepare a notice that includes the following: (a) the major plan amendment; (b) a statement that the major plan amendment is approved; (c) a statement that the major plan amendment must be presented to the Legislative Assembly and may only commence by commencement notice under section 80 (2). (6) A notice under subsection (5) is a notifiable instrument. (7) The following must be published on the authority website: (a) a decision by the Minister under subsection (2); (b) if the decision is under subsection (2) (b) or (c)—the reasons for the decision (if any).

Division 5.2.7 Ministerial and Legislative Assembly action on draft major plan

76 Return of draft major plan amendments to authority (1) This section applies if the Minister returns a draft major plan amendment to the territory planning authority with a direction under section 75 (2) (c). (2) If the direction is given under section 75 (2) (c) (i) or (ii), the territory planning authority may revise the draft major plan amendment and give it to the Minister for approval with a written report about— (a) the authority’s response to the Minister’s direction; and (b) any further revision of the draft amendment under section 66 (3). (3) If the direction is given under section 75 (2) (c) (iii), the territory planning authority must give the Minister the draft major plan amendment, as revised in accordance with the direction, together with a written report about any further revision of the draft amendment under section 66 (3). (4) After receiving the draft major plan amendment, the Minster must take additional action under section 75 in relation to the draft

77 Presentation of major plan amendments to Legislative Assembly (1) This section applies if the Minister approves a major plan amendment under section 75 (2) (a). (2) The Minister must present to the Legislative Assembly, not later than 5 sitting days after the day the Minister approves a major plan amendment, copies of each of the following: (a) the major plan amendment; (b) the background papers relating to the amendment; (c) any report mentioned in section 76 (2) or (3).

Ministerial and Legislative Assembly action on draft major plan Division 5.2.7 (3) If a major plan amendment is not presented to the Legislative Assembly in accordance with subsection (2), the major plan amendment does not come into effect. (4) However, the Minister may, at any time before the major plan amendment is presented to the Legislative Assembly, revoke the approval and reconsider the amendment as a draft major plan amendment under section 75.

78 Assembly may reject major plan amendments completely or partly (1) The Legislative Assembly may, by resolution, reject a major plan amendment, or a provision of the major plan amendment, presented to the Assembly. (2) Notice of a motion to reject the major plan amendment or a provision of the major plan amendment (a rejection notice) must be given not later than 5 sitting days after the day the major plan amendment is presented to the Legislative Assembly. (3) The major plan amendment or provision stated in a rejection notice given in accordance with subsection (2) is taken to have been rejected by the Legislative Assembly if, at the end of 5 sitting days after the day the rejection notice has been given in the Legislative Assembly— (a) the motion has not been called on; or (b) the motion has been called on and moved and has not been withdrawn or otherwise disposed of.

79 Effect of dissolution etc of Legislative Assembly (1) This section applies if, before the end of 5 sitting days after the day a rejection notice has been given in the Legislative Assembly under section 78 (2)— (a) the Legislative Assembly is dissolved or expires; and

Division 5.2.8 Commencement and publication of major plan amendments (b) at the time of dissolution or expiry— (i) the notice has not been withdrawn and the motion has not been called on; or (ii) the motion has been called on and moved and has not been withdrawn or otherwise disposed of. (2) The major plan amendment is taken, for section 78 (2) and (3), to have been presented to the Legislative Assembly on the first sitting day of the Legislative Assembly after the next general election of members of the Assembly. rejection notice—see section 78 (2). Division 5.2.8 Commencement and publication of

80 Commencement and publication of major plan (a) at the end of 5 sitting days after the day a major plan amendment is presented to the Legislative Assembly, the Assembly has not passed a resolution rejecting the amendment or any provision of the amendment; and (b) the major plan amendment, or a provision of the major plan amendment is not taken to have been rejected under section 78 (3) (Assembly may reject major plan amendments completely or partly). (2) The major plan amendment commences on a day fixed by the Minister by written notice. (3) The territory planning authority must publish a commencement notice under subsection (2) on the authority website.

Commencement and publication of major plan amendments Division 5.2.8

81 Rejection of major plan amendments by Legislative Assembly (1) This section applies if a major plan amendment, or a provision of the major plan amendment, is rejected, or taken to be rejected, under section 78 (Assembly may reject major plan amendments completely or partly). (2) The major plan amendment, or provision of the major plan amendment, does not come into force if the provision is— (a) rejected, or taken to be rejected, by the Legislative Assembly under section 78 (3); or (b) withdrawn under subsection (5) (b). (3) The territory planning authority must, in relation to each provision of the major plan amendment that is rejected, prepare a notice stating that the provision of the amendment has been rejected. Note A single notice may be prepared for 1 or more rejected provisions. (4) The notice is a notifiable instrument. (5) The Minister must, in relation to each provision of the major plan amendment that is not rejected— (a) fix a day when the provision is to commence; or (b) withdraw the provision. Note On commencement, a provision of a major plan amendment amends the territory plan according to its terms. (6) A withdrawal under subsection (5) (b) is a notifiable instrument. (7) If the notifiable instrument does not state when the instrument expires, the instrument expires 6 months after the day it is notified. (8) The territory planning authority must publish notice of the following on the authority website: (a) a notice under subsection (3);

Division 5.2.9 Limitations on challenge to validity of territory plan provisions (b) a commencement notice under subsection (5) (a); (c) a withdrawal under subsection (5) (b). Division 5.2.9 Limitations on challenge to validity of territory plan provisions

82 Limitations on challenge to validity of territory plan (1) The validity of a provision of the territory plan must not be questioned in any legal proceeding other than a proceeding begun not later than 3 months after the day the provision, or an amendment of the provision, commenced. (2) The validity of a provision of the territory plan must not be questioned in any legal proceeding only because the major plan amendment that inserted or amended the provision was inconsistent with the planning strategy or a district strategy.

Part 5.3 Territory plan—minor plan

83 Definitions—pt 5.3 limited consultation—see section 86 (1). minor plan amendment—see section 84.

84 What is a minor plan amendment and is consultation needed? (1) Each of the following territory plan amendments is a minor plan amendment for which no consultation is needed before it is made under section 85: (a) an amendment that— (i) would not adversely affect anyone’s rights if approved; and (ii) has as its only object the correction of a formal error in the plan; (b) an amendment to change the boundary of a zone under section 87 (Rezoning—boundary changes); (c) an amendment, other than one to which subsection (2) (b) applies, in relation to a subdivision design application under section 44 (Effect of approval of subdivision design application); (d) an amendment required to bring the territory plan into line with the national capital plan; (e) an amendment to add or change a reference to a design guide;

(f) an amendment to omit something that is obsolete or redundant in the territory plan. Example—obsolete or redundant thing a provision of the territory plan that has become redundant because of the enactment of a law that applies in the Territory (2) Each of the following territory plan amendments is a minor plan amendment for which only limited consultation is needed under section 86: (a) an amendment to change the boundary of a zone under section 88 (Rezoning—development encroaching on adjoining land); (b) an amendment in relation to a subdivision design application under section 44 (Effect of approval of subdivision design application) if it incorporates an ongoing provision that was not included in the plan under section 43 (2) (Subdivision design applications); (c) an amendment to relocate a provision within the territory plan if the substance of the provision is not changed; (d) an amendment to change a provision in the territory plan that— (i) does not change the substance of the plan; and (ii) is consistent with the policy intent of the provision; and (iii) is not an amendment mentioned in subsection (1) (a); (e) an amendment in relation to a future urban area under section 89. Note An amendment to rezone land that is not in a future urban area is not a minor plan amendment.

85 Making minor plan amendments (a) the territory planning authority is satisfied that a territory plan amendment would, if made, be a minor plan amendment; and (b) any limited consultation needed for the amendment has taken place. (2) The territory planning authority may only make a minor plan amendment if the amendment is not inconsistent with the planning strategy or any relevant district strategy. (3) A minor plan amendment is a notifiable instrument. (4) A minor plan amendment commences on a day fixed by the territory planning authority by written notice. (5) Not later than 5 working days after the day a minor plan amendment is notified under the Legislation Act, the territory planning authority must publish on the authority website— (a) a copy of the amendment as notified; and (b) any other information considered by the authority to be necessary or useful in explaining the minor amendment.

86 Limited consultation (1) The territory planning authority undertakes limited consultation for a proposed minor plan amendment if the authority complies with this section in relation to the amendment. (2) The territory planning authority must publish on the authority (a) a copy of the proposed minor plan amendment and information about the amendment; and

(b) a notice that— (i) states the consultation period and how written comments (consultation comments) may be made on the amendment; and (ii) states that a copy of any consultation comments will be made available on the authority website for at least 15 working days, starting 10 working days after the end of the consultation period; and (c) a copy of the documents mentioned in paragraph (b) (ii). Note Section 502 and s 503 apply to a person who makes consultation comments under this section. (3) The territory planning authority must tell the national capital authority about the minor plan amendment. (4) The territory planning authority must consider— (a) any consultation comments made in the consultation period and in accordance with the notice under subsection (2) (b); and (b) any views of the national capital authority. consultation period means a stated period of at least 20 working days.

87 Rezoning—boundary changes (1) This section applies to a zone in relation to land if the land adjoins unleased land or land for which the Territory is the registered proprietor (the adjoining land). (2) The territory planning authority may amend the territory plan under section 85 (Making minor plan amendments) to change the boundary of the zone to encroach onto the adjoining land if the change is consistent with— (a) the apparent intent of the original boundary line; and

(b) the desired outcomes for the zone. (3) The territory planning authority may amend the territory plan under section 85 to change the boundary of the zone to encroach onto the adjoining land if— (a) the authority is advised to do so by— (i) the conservator of flora and fauna; or (ii) the custodian of the land for the zone; and (b) the conditions in subsection (2) (a) and (b) are satisfied.

88 Rezoning—development encroaching on adjoining land (1) The territory planning authority may amend the territory plan under section 85 (Making minor plan amendments) to change the boundary of a zone consistent with a development proposal under section 158 (Declaration for development encroaching on adjoining land if development prohibited) if the authority makes a declaration that the proposal satisfies the criteria in section 158 (2). Note Under s 158 and s 159, a person may apply for development approval of a development proposal that encroaches on adjoining land if the development would otherwise be prohibited on the land. However, development approval must not be given until the minor plan amendment has commenced under s 85 (see s 185 (2) (b)). (2) However, the territory planning authority must not amend the territory plan under section 85 to change the boundary of the zone if the adjoining land is a future urban area. adjoining land—see section 87 (1).

89 Minor plan amendments—future urban areas (1) The territory planning authority may amend the territory plan under section 85 (Making minor plan amendments) to rezone land in a future urban area, and make or amend a district policy in relation to the land, unless the amendment is inconsistent with the principles and policies in the relevant district strategy. (2) The territory planning authority may amend the territory plan under section 85 to change the boundary of a future urban area if the change is consistent with the relevant district strategy. (3) However, the territory planning authority must not amend the territory plan under section 85 to change the boundary of a future urban area if part of the boundary proposed to be changed is aligned with the boundary of an existing leasehold.

Review of territory plan Part 5.4

90 Consideration of whether review of territory plan necessary (1) The Minister must, at least once every 5 years— (a) decide whether the territory plan should be reviewed; and (b) if the Minister decides that the territory plan should be reviewed—direct the territory planning authority to review the Note 1 The territory planning authority must also review the territory plan if directed to do so by the Minister (see s 19 and s 20 (1) (b)). Note 2 A direction mentioned in s (1) (b) is a notifiable instrument (see s 20 (3)). (2) In deciding whether the territory plan should be reviewed, the Minister— (a) must consider whether the territory plan— (i) is consistent with the object of this Act; and (ii) is consistent with the object of the territory plan; and (iii) gives effect to the plan’s object in a way that is not inconsistent with the national capital plan; and (iv) gives effect to the plan’s object in a way that gives effect to the principles of good planning; and (v) promotes the planning strategy; and (b) may consult with the public on whether the territory plan should be reviewed. (3) The Minister may delay making a decision to review the territory plan for not more than 1 year.

(4) The territory planning authority must publish on the authority website notice of— (a) the decision under subsection (1); and (b) any decision under subsection (3). (5) A decision by the Minister not to review the territory plan does not affect the territory planning authority’s function under section 18 (1) (b) of continually reviewing the territory plan.

91 Review of territory plan (1) This section applies if the Minister directs the territory planning authority under section 20 (1) (b) to review the territory plan. Note See also s 90 (1) (b). (2) The territory planning authority must review the territory plan and consider the following: (a) whether the territory plan remains consistent with the national capital plan; (b) whether the territory plan continues to further the object of this Act and the object of the territory plan in accordance with the principles of good planning; (c) whether the territory plan remains consistent with the planning strategy and district strategies; (d) whether the territory plan takes into account any planning outcomes contained in other government strategies and policies that may be relevant; (e) anything else prescribed by regulation. (3) After reviewing the territory plan, the territory planning authority must prepare a report (a draft review report)— (a) stating that the authority has reviewed the plan; and

Review of territory plan Part 5.4 (b) stating the authority’s findings on the review; and (c) if the authority considers that the territory plan should be amended—including the proposed amendment of the territory (4) The territory planning authority must consult with each of the following in relation to the draft review report: (a) the public; (b) the national capital authority; (c) the conservator of flora and fauna; (d) the environment protection authority; (e) the heritage council; (f) each referral entity; (g) if any territory plan amendment in the review report would, if made, be likely to affect unleased land or leased public land— each custodian of the land likely to be affected.

92 Action after consultation about draft review report (1) After the end of the consultation period for a draft review report, the territory planning authority may revise the draft review report. (2) In revising the draft review report, the territory planning authority must consider written comments (including consultation comments) about the draft review report received in the consultation period. (3) The territory planning authority may, at any time before the draft review report is given, or given again, to the Minister, revise the report to correct a formal error.

93 Draft review report to be given to Minister etc (1) The territory planning authority must give the draft review report to the Minister, together with the following documents: (a) a written report about the authority’s consultation with the (i) the public; (ii) the national capital authority; (iii) the conservator of flora and fauna; (iv) the environment protection authority; (v) the heritage council; (vi) each referral entity; (vii) if any territory plan amendment in the review report would, if made, be likely to affect unleased land or leased public land—each custodian of the land likely to be affected; (b) a copy of any written document given to the Minister by the national capital authority in relation to the draft review report. (2) The written report mentioned in subsection (1) (a) must include a statement about the issues raised in any consultation comments about the draft review report. Note If the Minister accepts the draft review report, the Minister may direct the territory planning authority to amend the territory plan.

Preliminary Part 6.1

94 Meaning of significant development A proposed development is a significant development if it requires any of the following: (a) a subdivision design application under section 43; (b) consultation with the design review panel under section 100 (1) or (2); (c) an environmental impact statement (EIS) under section 105. Note A regulation cannot exempt a significant development from requiring development approval (see s 145 (2)).

95 Establishment of design review panel The Design Review Panel is established.

96 Functions of design review panel The design review panel has the following functions: (a) to provide design advice to proponents of development proposals; (b) to exercise any other function given to the panel under this Act or another territory law.

97 Members of design review panel (1) The design review panel consists of at least 3 of the following members: (a) the person engaged as the government architect; (b) a representative of the national capital authority; (c) 1 or more members contracted under subsection (2) to provide design review services to the panel. (2) The territory planning authority may, on behalf of the Territory, enter into a contract for services with a person to provide design review services to the design review panel. (3) However, the territory planning authority may enter into a contract with a person only if satisfied that the person has appropriate expertise in architecture, urban design, urban planning, landscape architecture, engineering or another area relevant to the urban environment.

Design review panel Part 6.2 (4) The contract must include conditions to ensure the accountability, transparency and independence of contracted panel members, including conditions about the following: (a) ending the member’s contract; (b) disclosure of interests; (c) conflicts of interest.

98 Rules for design review panel (1) The Minister may make rules (design review panel rules) for the design review panel, including rules about— (a) terms of reference for the panel; and (b) constitution of the panel; and (c) conducting meetings of the panel; and (d) processes and procedures for reviewing development proposals. Examples—pars (a) to (c) 1 the quorum at meetings 2 who presides at meetings 3 how questions are resolved at meetings 4 how conflicts of interest are dealt with at meetings Examples—par (d) 1 site inspections 2 sources of best practice for design review (2) The design review panel rules may apply, adopt or incorporate an instrument as in force from time to time. (3) The Legislation Act, section 47 (6) does not apply to an instrument applied, adopted or incorporated under subsection (2).

(4) The design review panel rules must be published on the authority

99 Design principles (1) The Minister may make principles (design principles) to be used by the design review panel in assessing development proposals under this Act. (2) The design principles must be published on the authority website.

100 When design review panel consultation is required (1) Before submitting a development application for a prescribed development proposal, the proponent must consult the design review panel about the proposal. (2) Also, if the Minister is satisfied that a development proposal is likely to be of economic, social or environmental significance to the Territory, the Minister may require the proponent to consult the design review panel about the proposal. (3) In addition, the proponent of any other development proposal may consult the design review panel about the proposal. (4) If the proponent of a development proposal consults the design review panel about the proposal, the consultation must be undertaken in accordance with any design review panel rules.

101 Advice of design review panel (a) the proponent of a development proposal consults the design review panel about the proposal under section 100; or (b) the territory planning authority refers a development proposal in a development application to the design review panel under section 171 (2) (b).

Design review panel Part 6.2 (2) The design review panel must— (a) consider the proposal; and (i) provide the proponent with advice about how the proposal could be made consistent, or more consistent, with any design principles (design advice); or (ii) tell the proponent that the panel has no advice about the proposal; and (c) if the panel provides the proponent with design advice—give a copy of the design advice to the territory planning authority. Note If design advice is given, the proponent’s response to the design advice must be included in the development application (see s 166 (2) (d)). (3) If the proponent does not submit a development application for the development proposal within 18 months after the design advice is provided, the design advice expires.

Part 6.3 Environmental impact assessment

102 Outline of environmental impact assessment (1) Formal assessment of a development proposal’s potential environmental impact (environmental impact assessment) is required for certain proposals. (2) Environmental impact assessment is typically in the form of an environmental impact statement (see s 105), but in some cases a proponent may instead apply for an opinion indicating that the proposal is not likely to have a significant adverse environmental impact (an environmental significance opinion) (see s 138). (3) A development application for a development proposal requiring environmental impact assessment must include a finalised EIS or an environmental significance opinion (see s 166 (2) (d)). (4) If an environmental significance opinion is given for a proposal, the proposed development is no longer a significant development. (5) Environmental impact assessment is taken into account in deciding a development application but is not itself a development application or a development approval process. (6) This section is intended only as a guide to readers.

103 Outline of EIS process (1) If this Act requires an EIS for a development proposal, the proponent of the proposal must apply to the territory planning authority for a document to identify the matters to be addressed in the EIS (see s 109). (2) The territory planning authority must prepare and give a scoping document to the proponent (see s 109 to s 111).

Outline and key concepts Division 6.3.1 (3) The proponent must prepare a draft EIS (see s 112). (4) The territory planning authority must publicly notify the draft EIS (see s 114), and anyone may make a representation about the draft EIS (see s 115). (5) The proponent must revise the draft EIS and give the revised EIS to the territory planning authority (see s 118). (6) The territory planning authority must consider the EIS (see s 121) and— (a) accept the EIS (see s 121 (2)); or (b) give the proponent another opportunity to revise the EIS (see s 122); or (c) reject the EIS (see s 123). (7) If the territory planning authority accepts an EIS, the authority (a) give the EIS to the Minister (see s 125); and (b) prepare an EIS assessment report (see s 126). (8) After receiving an EIS, the Minister may— (a) establish an inquiry panel to inquire about the EIS (see s 132); or (b) give the authority a notice of no action on the EIS (see s 127). (9) An EIS generally expires 5 years after the day it is finalised (see s 131). (10) This section is intended only as a guide to readers.

104 Meaning of significant adverse environmental impact (1) For this Act, an adverse environmental impact is significant if— (a) the environmental function, system, value or entity that might be adversely impacted by a proposed development is significant; or (b) the cumulative or incremental effect of a proposed development might contribute to a substantial adverse impact on an environmental function, system, value or entity. (2) In deciding whether an adverse environmental impact is significant, the following matters must be taken into account: (a) the kind, size, frequency, intensity, scope and length of time of the impact; (b) the sensitivity, resilience and rarity of the environmental function, system, value or entity likely to be affected. (3) In deciding whether a development proposal is likely to have a significant adverse environmental impact, it does not matter whether the adverse environmental impact is likely to occur on the site of the development or elsewhere.

105 When EIS is required (1) An EIS is required for a development proposal if— (a) the proposal is prescribed by regulation; or (b) the Minister makes a declaration in relation to the proposal under section 106; or

EIS requirements Division 6.3.2 (c) the Commonwealth Minister responsible for administering the EPBC Act advises the Minister in writing that the proposed development— (i) is a controlled action under that Act, section 78 (Minister may request more information for making decisions); and (ii) does not require assessment under that Act, part 8 (Assessing impacts of controlled actions) because a bilateral agreement between the Commonwealth and the Territory under that Act allows the proposal to be assessed under this Act; or (d) the Public Health Act Minister makes a declaration under the Public Health Act 1997, section 134 in relation to a development application for the proposal and— (i) the application is publicly notified; and (ii) the declaration is made during the public notification period for the application. (2) However, an EIS is not required for a development proposal if an environmental significance opinion has been given for the proposal. Note See s 138 for when a proponent may apply for an environmental significance opinion.

106 EIS—declaration by Minister (1) The Minister may, in writing, declare that an EIS must be undertaken for a development proposal. (2) However, the Minister must not make a declaration in relation to the development proposal unless satisfied on reasonable grounds that there is a risk of significant adverse environmental impact from the proposed development. Note The Minister may publish guidelines about how the Minister will exercise power under this section (see s 519).

107 Effect of declaration made after development application (1) This section applies to a development application if, after the application is made— (i) the Minister makes a declaration under section 106 in relation to the development proposal to which the application relates; or (ii) the Public Health Act Minister makes a declaration under the Public Health Act 1997, section 134 in relation to the (b) the application does not satisfy the application requirements for a development requiring environmental impact assessment. (2) The development application is taken to have been withdrawn. (3) The territory planning authority must give the applicant notice of the effect of this section.

108 Designated proponents for certain EIS decisions (1) The relevant Minister in relation to a defined decision may, in writing, designate a person or territory authority as the proponent in relation to the decision. defined decision means a decision of the Territory, the Executive, a Minister or a territory authority about a proposal in relation to which a Minister is empowered— (a) to direct that an EIS be prepared; or (b) to establish an inquiry panel to inquire about the EIS.

Scope of EIS Division 6.3.3 relevant Minister means the Minister responsible for the administration of the Act or subordinate law under which— (a) in relation to an EIS or inquiry—the EIS or inquiry is authorised to be prepared or conducted; or (b) in relation to a defined decision—the relevant decision is authorised to be made.

109 Application for EIS scoping document (1) A proponent of a development proposal must apply to the territory planning authority under this section if an EIS is required under section 105 for the proposal. (a) identify the matters that are to be addressed by an EIS in relation to the development proposal; and (b) prepare a document of the matters (the scoping document); and (c) publish the application for the scoping document and documents in support of the application on the authority’s website. Note The time for giving a scoping document to the applicant is set out in s 111. (3) A regulation may prescribe consultation requirements for the preparation of a scoping document.

110 Contents of scoping document (1) The matters identified in the scoping document for a development proposal must include any minimum content for scoping documents prescribed by regulation.

(2) The territory planning authority may, in the scoping document for a development proposal— (a) require the proponent to engage a consultant to help prepare an EIS for the proposal; and (b) set a shorter period within which a draft EIS must be provided to the authority under section 112; and (c) request any other information relevant to the proposal. consultant means a person who satisfies the criteria prescribed by

111 Time to provide scoping document (1) The territory planning authority must give a scoping document for a development proposal to the proponent of the proposal within— (a) 30 working days after the day the proponent makes an application under section 109; or (b) if the chief planner extends the period to give the scoping document under subsection (2)—the extended period. (2) The chief planner may, in writing, extend the period to give a scoping document for a development proposal if satisfied that, because of the complexity of the proposal and the consultation required, the extension is necessary. (3) The chief planner must give written notice of an extension under subsection (2) to the proponent of the development proposal.

Drafting EIS Division 6.3.4

112 Preparing draft EIS (1) After the territory planning authority gives a scoping document for a development proposal to the proponent of the proposal, the proponent (a) prepare a document that addresses each matter raised in the scoping document (a draft EIS); and (b) give the draft EIS to the territory planning authority for public notification within— (i) 18 months starting on the day after the scoping document is completed; or (ii) if a shorter period was set under section 110 (2) (b)—the shorter period; or (iii) if the authority extends the period to give the draft EIS under subsection (2)—the extended period. (2) The territory planning authority may extend the period for the proponent to give a draft EIS to the authority, but only once.

113 Recent studies to support draft EIS (1) This section applies if the expected environmental impact of a development proposal has been addressed by a recent study, whether or not the recent study relates directly to the development proposal. Examples—recent study that may address the expected environmental impact of a development proposal 1 a report about the ecological value of an area 2 an environmental impact statement under the EPBC Act, pt 8 (Assessing impacts of controlled actions) 3 an endorsed policy, plan or program under the EPBC Act, pt 10 (Strategic assessments)

(2) The draft EIS may refer to the recent study to address a matter identified in the scoping document for the proposal. (3) In deciding whether the environmental impact of the proposal has been sufficiently addressed by the recent study, the territory planning authority must consider— (a) whether the recent study was conducted by an appropriately qualified person with relevant expertise and experience in relation to the environmental values of the land in the proposal; and (b) if the recent study does not relate directly to the proposal— whether the study is sufficiently detailed to allow assessment of the environmental impacts likely to occur if the proposal proceeds; and (c) whether the part of the recent study relevant to the proposal required public consultation through a statutory process or as part of a government policy development. Example—par (c) the public consultation process for a draft major plan amendment under div 5.2.3 (4) If the recent study is more than 18 months old, the draft EIS must include a statement, from an appropriately qualified person with no current professional relationship with the proponent, verifying that the information in the recent study is current. recent study means a study that is less than 5 years old.

Consultation on EIS Division 6.3.5

114 Public notification of draft EIS The territory planning authority must do the following things in relation to a draft EIS to publicly notify the draft EIS: (a) give public notice stating— (i) that the draft EIS is available for public inspection and for purchase at stated places and times; and (ii) how representations may be made on the draft EIS; and (iii) the period, at least 30 working days, during which representations may be made on the draft EIS (the public consultation period); (b) make 1 or more copies of the draft EIS available as stated in the public notice; (c) make a copy of the draft EIS available on the authority website; (d) display a sign on the site of the development to which the draft EIS relates stating the matters under paragraph (a).

115 Representations about draft EIS (1) Anyone may make a representation about a draft EIS publicly notified under section 114. (2) A representation about a draft EIS must be made during the public consultation period for the draft EIS. (3) The territory planning authority may give public notice to extend the public consultation period. (4) If the territory planning authority extends the public consultation period, the authority must give the proponent of the development proposal written notice of the extension.

(5) A person who makes a representation about a draft EIS may, in writing, withdraw the representation at any time before the territory planning authority accepts the EIS under section 121 (2) (a).

116 Publication of representations about draft EIS (1) This section applies if a person makes a representation about a draft EIS in accordance with the public notice for the draft EIS under section 114. (a) make a copy of the representation available on the authority website until— (i) the EIS is finalised; or (ii) the representation is withdrawn; and (b) give a copy of the representation to the proponent of the development proposal as soon as practicable after the public consultation period for the draft EIS ends. Note This section is subject to s 502 and s 503.

117 Entity consultation on draft EIS The territory planning authority may— (a) consult on a draft EIS with any entity prescribed for section 109 (3); and (b) give a copy of any submission made by the entity to the proponent of the development proposal.

Revision of EIS Division 6.3.6

Division 6.3.6 Revision of EIS

118 Revision of draft EIS (1) After the public consultation period for a draft EIS, the territory planning authority must give the proponent of the development proposal written notice of the period within which the proponent (a) revise the draft EIS; and (b) give the revised EIS to the authority. (2) The period in subsection (1) must be at least 30 days, but not more than 18 months, after the day the territory planning authority gives the notice. (3) The territory planning authority may extend the period in subsection (1), but only once. (4) The revised EIS must— (a) address each matter identified in the scoping document for the development proposal; and (b) if a matter is raised in a representation made during the public consultation period—address the matter and demonstrate how the matter has been taken into account; and (c) if a matter is raised in a submission under section 117 for the draft EIS—address the matter and demonstrate how the matter has been taken into account.

119 Public notification of revised EIS (1) The territory planning authority may publicly notify a revised EIS as if it were a draft EIS under section 114 if the authority is satisfied (a) the revised EIS is significantly different from the draft EIS; and

(b) public notification of the revised EIS is justified because of the difference. (2) However, there is no minimum period during which representations may be made on a revised EIS. Note Normally the public consultation period for a draft EIS cannot be less than 30 working days (see s 114 (a) (iii)), but this does not apply to a revised EIS. (3) If the territory planning authority publicly notifies a revised EIS, the following provisions apply to the revised EIS as if it were a draft EIS: (a) section 115 (Representations about draft EIS); (b) section 116 (Publication of representations about draft EIS); (c) section 117 (Entity consultation on draft EIS); (d) section 118 (Revision of draft EIS).

120 Rejection of EIS before consideration (1) This section applies if the proponent of a development proposal fails to give the territory planning authority a revised EIS within the time required by a written notice under section 118 (1). (2) The territory planning authority must reject the EIS and give the proponent written notice of the rejection. Note If the EIS is rejected, the EIS process ends and a new process must be started.

121 Authority consideration of EIS (1) This section applies if the proponent of a development proposal gives the territory planning authority a revised EIS— (a) within the time required by written notice under section 118 (1); or

Consideration of EIS Division 6.3.7 (b) in accordance with a written notice under section 122 (2). (a) if satisfied that the revised EIS meets the requirements mentioned in section 118 (4)—accept the revised EIS; or (b) if section 122 applies—take action under section 122; or (c) if section 123 applies—take action under section 123. (3) In making a decision under this division, the territory planning authority must consult each entity that made a submission to the authority about the scoping document for the draft EIS under section 109 (3).

122 Chance to address unaddressed matters (1) This section applies in relation to a revised EIS for a development proposal if the territory planning authority— (a) is not satisfied that the revised EIS meets the requirements mentioned in section 118 (4); and (b) has not given a second written notice in relation to the revised EIS under subsection (2). (2) The territory planning authority must give the proponent of the development proposal written notice stating the following: (a) that the authority does not accept the EIS; (b) why the authority does not accept the EIS; (c) that the proponent must provide a new revised EIS within a stated period of at least 20 working days.

123 Rejection of EIS after consideration (1) This section applies if the territory planning authority gives the proponent of a development proposal a second written notice under section 122.

(2) The territory planning authority must reject the revised EIS if— (a) the proponent does not provide a new revised EIS within the period stated in the notice; or (b) the proponent responds within the period stated in the notice but the authority remains unsatisfied in relation to a matter mentioned in section 118 (4). Note If the EIS is rejected, the EIS process ends and a new process must be started.

124 Cost recovery The territory planning authority may recover from the proponent of a development proposal to which an EIS relates the direct and indirect costs incurred by the authority— (a) in preparing an EIS assessment report for the proposal under section 126; and (b) in engaging a consultant to assist with the collection or analysis of information relevant to the authority’s assessment of matters under any of the following provisions: (i) section 109 (3) (Application for EIS scoping document); (ii) section 120 (Rejection of EIS before consideration); (iii) section 121 (3) (Authority consideration of EIS); (iv) section 122 (Chance to address unaddressed matters); (v) section 123 (Rejection of EIS after consideration).

Consideration of EIS Division 6.3.7

125 Giving EIS to Minister (1) This section applies if the territory planning authority accepts an EIS under section 121 (2) (a). (2) However, this section does not apply if the territory planning authority has sent an invoice to the proponent of a development proposal for costs recoverable under section 124 and the invoice remains unpaid. (3) The territory planning authority must give the EIS to— (a) the Minister; and (b) for a public health EIS—the Public Health Act Minister.

126 EIS assessment report (1) If the territory planning authority accepts an EIS under section 121 (2) (a), the authority must prepare a report (an EIS assessment report) that— (a) confirms that the authority is satisfied in relation to the matters mentioned in section 118 (4); and (b) may contain additional information about how the authority came to be satisfied in relation to those matters. (a) if an EIS is given to the Minister under section 125—give the EIS assessment report to the Minister; and (b) if a public health EIS is given to the Public Health Act Minister under section 125—give the EIS assessment report to the Public Health Act Minister. (3) An EIS assessment report must be published on the authority website.

127 Notice of no action on EIS (a) the territory planning authority gives the Minister an EIS under section 125; and (b) the Minister decides not to establish an inquiry panel to inquire about the EIS. (2) The Minister must give the territory planning authority written notice that the Minister has decided to take no action in relation to the EIS. Note If the Minister gives notice under this section, the EIS to which the notice relates is finalised (see s 128).

128 When EIS is finalised For this Act, an EIS (other than a public health EIS) is finalised if— (a) the Minister gives the territory planning authority notice under section 127 (Notice of no action on EIS) in relation to the EIS; or (b) the Minister has established an inquiry panel for the EIS and— (i) the panel has reported the results of the inquiry; or (ii) the time for reporting under section 134 has ended.

129 When public health EIS is finalised For this Act, a public health EIS is finalised if— (a) notice in relation to the EIS is given to the territory planning authority by— (i) the Minister under section 127 (Notice of no action on EIS); and

Finalisation and expiry of EIS Division 6.3.8 (ii) the Public Health Act Minister under the Public Health Act 1997, section 134 (3) (b); or (b) at least 15 working days have elapsed since the EIS was given to the Minister and the Public Health Act Minister and— (i) the Minister has not decided, within the 15-day period mentioned in section 132 (1), to establish an inquiry panel to inquire about the EIS; and (ii) the Public Health Act Minister has not decided, within the 15-day period mentioned in the Public Health Act 1997, section 134 (4), that an inquiry panel to inquire about the EIS must be established; or (c) both of the following apply: (i) notice in relation to the EIS is given to the authority by— (A) the Minister under section 127; or (B) the Public Health Act Minister under the Public Health Act 1997, section 134 (3) (b); (ii) at least 15 working days have elapsed since the EIS was given to the Minister and the Public Health Act Minister and— (A) if the Minister gave the authority notice in relation to the EIS under section 127—the Public Health Act Minister has not decided, within the 15-day period mentioned in the Public Health Act 1997, section 134 (4), that an inquiry panel to inquire about the EIS must be established; or (B) in any other case—the Minister has not decided, within the 15-day period mentioned in section 132 (1), to establish an inquiry panel to inquire about the EIS; or

(d) the Minister has established an inquiry panel for the EIS and— (i) the panel has reported the results of the inquiry; or (ii) the time for reporting under section 134 has ended.

130 Publication of finalised EIS A finalised EIS must be published on the authority website.

131 When EIS expires (1) An EIS expires 5 years after the day it is finalised. (2) However, subsection (3) applies if an EIS refers to a recent study in accordance with section 113 and— (a) the recent study is an environmental impact statement prepared under the EPBC Act, part 8 (Assessing impacts of controlled actions) and approval of action in relation to the development has been given under that Act, part 9 (Approval of actions); or (b) the recent study is an endorsed policy, plan or program under the EPBC Act, part 10 (Strategic assessments) and approval of action in relation to the development has been given under that Act, part 10. (3) The EIS expires on the latest of— (a) the expiry of the approval mentioned in subsection (2) (a) or (b) (whichever applies); and (b) 5 years after the day the EIS is finalised.

EIS inquiry panels Division 6.3.9

132 When to establish inquiry panel (1) The Minister must, within 15 working days after the day an EIS is given to the Minister under section 125— (a) decide whether to establish a panel (an inquiry panel) to inquire about the EIS; and (b) if the Minister decides to establish an inquiry panel—tell the territory planning authority about the decision. (2) If the Minister decides to establish an inquiry panel to inquire about an EIS, the Minister may establish the panel to inquire about 1 or more aspects of the EIS. (3) However, if the Public Health Act Minister gives notice under the Public Health Act 1997, section 134 that a panel to conduct an inquiry about an EIS should be established, the Minister must establish an inquiry panel to inquire in relation to the effects on public health of the proposal that is the subject of the EIS. (4) If the Minister establishes an inquiry panel to inquire about an EIS, the Minister must— (a) prepare terms of reference for the inquiry; and (b) give written notice of the inquiry to the proponent of the development proposal to which the EIS relates. (5) The terms of reference are a notifiable instrument.

133 How to establish inquiry panel (1) The Minister establishes an inquiry panel for an EIS by— (a) appointing 1 or more people to the panel; and (b) preparing written terms of reference for the inquiry.

(2) If the Minister appoints more than 1 person to an inquiry panel, the Minister must, in writing, nominate a person appointed to be the presiding member of the panel. (3) However, the Minister must not appoint a person to an inquiry panel unless satisfied that the person has the expertise necessary to exercise the functions of the panel in relation to the matter inquired into. (4) Also, the Minister must not appoint any of the following people to an inquiry panel for an EIS: (a) the chief planner; (b) a member of the territory planning authority’s staff; (c) a member of the city renewal authority’s staff; (d) a member of the suburban land agency’s staff; (e) a person prescribed by regulation in relation to the EIS.

134 Time for reporting by inquiry panels (1) An inquiry panel must report in writing to the Minister on the result of the inquiry within— (a) 60 working days after the day the Minister establishes the panel; or (b) if the period under paragraph (a) is extended under subsection (2)—the extended period. (2) The Minister may, on application by the panel, extend by written notice the period for reporting.

135 Inquiry panel findings and report to be independent (1) The report of an inquiry panel must be the view of the inquiry panel based on the findings of the panel. (2) The Minister must not direct an inquiry panel in relation to the findings or report of the panel.

136 Protection of people on inquiry panels from liability (1) A person appointed to an inquiry panel is not personally liable for anything done, or omitted to be done, honestly and without recklessness— (a) in the exercise of a function under this Act; or (b) in the reasonable belief that the conduct was in the exercise of a function under this Act. (2) Any liability that would, apart from this section, attach to a person appointed to an inquiry panel attaches instead to the Territory.

137 Recovery of inquiry panel costs The direct and indirect costs to the Territory of conducting an inquiry about an EIS are recoverable from the proponent of the development proposal to which the EIS relates. Example—indirect costs the administrative overheads of staff exercising functions in relation to the inquiry Note An amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act, s 177).

138 Application for environmental significance opinion (1) A proponent may apply for an environmental significance opinion for a proposal if a regulation states that an opinion may be given for the Note An EIS is not required for a proposal if an environmental significance opinion is given for it (see s 105 (2)). (2) A regulation may prescribe an agency to which a proponent may apply for an environmental significance opinion (the relevant agency).

139 Environmental significance opinions given by authority (1) If the territory planning authority is the relevant agency for an environmental significance opinion, the authority must not give an opinion unless it has consulted each of the following entities: (a) the work health and safety commissioner; (b) the environment protection authority; (c) the emergency services commissioner; (d) the technical regulator under the Utilities (Technical Regulation) Act 2014, section 77; (e) the director-general of the administrative unit responsible for the Health Act 1993; (f) if an area adjacent to the ACT could be adversely affected by development that is the subject of the development proposal— the council for the area; (g) an entity prescribed by regulation. area—see the Local Government Act 1993 (NSW), dictionary. council—see the Local Government Act 1993 (NSW), dictionary.

140 Deciding environmental significance opinion application (1) A relevant agency may, by written notice, require an applicant for an environmental significance opinion to give more information in support of the application. (2) The notice must state the period, not shorter than 20 working days, within which the applicant must respond to the notice. (3) The relevant agency may refuse to decide the application if the requested information is not given to the agency within the stated period.

(4) A relevant agency deciding an application must— (a) if the relevant agency considers that the proposal is not likely to have a significant adverse environmental impact—give the environmental significance opinion; or (b) if the relevant agency considers that the proposal is not likely to have a significant adverse environmental impact if the development satisfies certain conditions—give the environmental significance opinion subject to the stated conditions (a conditional environmental significance opinion); or (c) reject the application. Note If a conditional environmental significance opinion has been given for a development, the development approval must include a condition that the development comply with the condition in the environmental significance opinion (see s 187 (1) (d)). In addition, an application to amend a development approval must be refused if the changed development proposal would be in breach of a condition included in the approval relating to a conditional environmental significance opinion (see s 206 (2) (a)). (5) If a relevant agency other than the territory planning authority rejects the application, the relevant agency must give written notice of the rejection to the authority. (6) If the territory planning authority rejects the application or receives notice under subsection (5), the authority must give written notice of the rejection to the applicant. (7) A relevant agency is taken to have rejected an application for an environmental significance opinion if the agency does not give the opinion or notice under subsection (5) within— (a) if no information is requested under subsection (1)—30 working days after the application is made to the agency; or

(b) if information is requested and the information is given to the agency—30 working days after the information is given to the agency; or (c) if information is requested and the information is not given to the agency within the period stated—30 working days after the stated period has ended. (8) However, the relevant agency may decide the application despite the rejection of the application under subsection (7).

141 Costs of environmental significance opinion (1) A relevant agency may recover from an applicant for an environmental significance opinion the direct and indirect costs incurred by the agency— (a) in deciding an application for the opinion; and (b) in preparing the opinion; and (c) in engaging a consultant to assist with deciding the application or preparing the opinion. (2) If the relevant agency has sent an invoice to the applicant for the costs recoverable under subsection (1), the agency must give a copy of the invoice to the territory planning authority. (3) Despite section 140 (4) and (5), the relevant agency may wait until the invoice has been paid by the applicant before giving the environmental significance opinion or giving notice under section 140 (5).

142 Notice of environmental significance opinion (1) This section applies to an environmental significance opinion given by a relevant agency to the applicant for the opinion.

(2) The relevant agency must give a copy of the environmental significance opinion to the territory planning authority when the opinion is given to the applicant. (3) The territory planning authority must prepare a notice including the text of the environmental significance opinion and publish it on the (4) An environmental significance opinion and the notice including the text of the opinion expire 18 months after the day the opinion is given to the applicant. (5) Giving an environmental significance opinion does not limit any power the relevant agency has under this Act or any other territory law.

Chapter 7 Development assessment and

143 Outline—ch 7 (1) This chapter sets out the following: (a) the main types of development; (b) requirements for development approval; (c) the development approval process. (2) The main types of development are as follows: (a) assessable development needs development approval and includes significant development under chapter 6; (b) prohibited development is unlawful unless development approval is allowed under division 7.3.1; (c) exempt development does not need development approval. (3) This section is intended only as a guide to readers.

144 Meaning of decision-maker—ch 7 decision-maker— (a) for a development application, means— (i) if the application is for the removal of the concessional status of a lease or for a territory priority project—the Minister; and

Outline and important concepts Part 7.1 (ii) in any other case—the territory planning authority; and (b) for a development approval, means— (i) if the approval is for the removal of the concessional status of a lease or for a territory priority project—the Minister; and (ii) if the territory planning authority decided the application for the approval under section 185—the authority.

145 Meaning of exempt development exempt development means— (a) development that is exempt from requiring development approval under— (i) section 147 (Exempt development—authorised use); or (ii) a regulation; and (b) a land management practice undertaken in accordance with Aboriginal tradition and prescribed by regulation. Note The territory planning authority may tell a proponent of a development proposal whether the development is likely to be exempt if asked by the proponent (see s 164 and s 165). A person may apply for an exemption assessment to work out whether a development is an exempt development (see s 151). (2) For the definition of exempt development, a regulation may not exempt any of the following from requiring development approval: (a) a significant development; (b) a development that is inconsistent with an essential design element identified in a development approval. Note Essential design element, of a development proposal—see s 188. Aboriginal tradition means the customs, rituals, institutions, beliefs or general way of life of the traditional custodians of the land.

Preliminary Division 7.2.1

146 Meaning of authorised use—pt 7.2 authorised use, of land, or of a building or other structure on land— (a) means a use authorised by any of the following: (i) a lease; (ii) a licence under this Act; Land Act 2013; (iv) a sign approval or work approval under the Public Unleased Land Act 2013; (v) a preserved lease; and 6 months before the use and is renewed within 6 months after the expiry; but (c) does not include a use authorised by section 276 (Use of land for leased purpose).

147 Exempt development—authorised use (1) An authorised use of land, or of a building or other structure on land, is exempt from requiring development approval. (2) To remove any doubt, an authorised use of a building or other structure on land is exempt from requiring development approval if the construction of the building or other structure is exempt from requiring development approval.

(3) To remove any doubt, if an authorised use of land, or of a building or other structure on land, is exempt from requiring development approval under subsection (1), the right to use the land, building or other structure as authorised does not end only because 1 or more of the following apply: (b) someone deals with the lease (the affected lease) that authorises the use; under section 289 (Grant of further leases), whether or not the grant happens immediately after the expiry of the affected lease. (4) This section is subject to section 148.

148 Authorised use that is not exempt (1) An authorised use of land, or of a building or other structure on land, requires development approval if— (a) earthworks or other construction work is undertaken on the land; and (b) the work requires development approval. (2) Also, an authorised use of land, or of a building or other structure on land, requires development approval if— (a) a building or other structure is constructed on the land, or a building or other structure on the land is altered or demolished; and (b) the construction, alteration or demolition requires development

Preliminary Division 7.2.1 (3) Also, an authorised use of land, or of a building or other structure on land, requires development approval if— (a) the placard quantity or more of a Schedule 11 hazardous chemical is to be stored on the land or in the building or other structure; and (b) the land, building or other structure is not mentioned in the Planning and Development (Placard Quantity Premises) List 2018 (NI2018-532) (repealed). placard quantity—see the Work Health and Safety Regulation 2011,

Schedule 11 hazardous chemical—see the Work Health and Safety Regulation 2011, dictionary. Note Because the use of land, or of a building or other structure on land, is development (see s 14 (1)), if the use of the land, building or other structure stops being exempt under this section, development approval will be required for the use.

149 Effect of s 148 on development approval (a) there is a development proposal in relation to land; and (b) undertaking the proposal would result in an authorised use of the land, or of a building or other structure on the land, requiring development approval because of section 148. (2) The proponent of the proposal must apply for development approval for— (a) the proposal; and (b) any authorised use of the land, or of a building or other structure on the land, that is intended to continue to apply after the proposal is undertaken (the proposed use).

(3) In deciding the development application, the decision-maker— (a) must not refuse to approve the application only on the ground that, if the application were an application only for the proposed use, the application would be refused; and (b) must not approve the application on a condition only because, if the application were an application only for the proposed use, the application would be approved on the condition. Maria is the lessee of land for which the authorised uses are retail and commercial and on which there are office buildings and shops. Maria wants to undertake earthworks to clear an area of vegetation for people to park on the land, which will require development approval. If the earthworks were undertaken, the authorised uses of the land would stop being exempt under s 148. In addition to applying for development approval to undertake the earthworks, Maria must also apply for development approval to use the land for retail and commercial purposes. The decision-maker cannot refuse to approve the application, or approve it on a condition, only on the ground that, if the application were only for the use of the land for retail purposes or commercial purposes, or use of the office buildings and shops, the decision-maker would refuse the application or approve it on conditions.

150 Exempt development—no need for approval An exempt development may be undertaken without any of the (a) a development application; (b) a development approval; (c) an exemption assessment. Note The proposal for the exempt development may still need a building approval under the Building Act 2004.

Exemption assessments Division 7.2.3

151 Application for exemption assessment (1) A person may apply to a works assessor or building surveyor (the exemption assessor) for an assessment of whether a development is an exempt development (an exemption assessment). Note Applying for an exemption assessment is not a requirement of the development approval or building approval process (see s 150 and Building Act 2004, s 14A). If a person believes that a development is an exempt development, the person need not apply for an exemption assessment from a works assessor or building surveyor. (2) An application must be— (a) in writing submitted by the applicant; and (b) approved in writing by any other prescribed person; and (c) accompanied by information, plans and other documents prescribed by regulation. (3) The application may relate to development that is to be undertaken or has been undertaken. building surveyor—see the Construction Occupations (Licensing) Act 2004, section 9. works assessor—see the Construction Occupations (Licensing) Act 2004, section 14A.

152 Exemption assessment and notice (a) a person applies to an exemption assessor for an exemption assessment under section 151; and (b) the exemption assessor agrees to do the exemption assessment.

(2) The exemption assessor must— (a) assess the application; and (b) give the applicant a notice (an exemption assessment D notice)— (i) stating whether the development is, in the assessor’s opinion, an exempt development; and (ii) including anything else prescribed by regulation. (3) The exemption assessor must give a copy of the exemption assessment D notice to the territory planning authority within 5 days after the day the notice is given to the applicant. (4) The exemption assessor may, in assessing the application, request more information from the applicant. (5) If the applicant does not provide the requested information, the exemption assessor need not assess the application or give the exemption assessment D notice. (6) The exemption assessor may charge a fee for giving the exemption assessment D notice.

153 Effect of exemption assessment D notice (1) An exemption assessment D notice in relation to a development yet to be undertaken certifies that the development is, or is not, an exempt (2) An exemption assessment D notice in relation to a development that has been undertaken certifies that the development is, or is not, exempt from requiring development approval based on whether the development— (a) was exempt from requiring development approval at the time it was done; or (b) is currently exempt from requiring development approval.

Division 7.3.1 Applications for prohibited development—general

154 Meaning of prohibited development (1) For this Act, a development is a prohibited development if either of the following applies to the development or a part of the development: (a) the development is prohibited under the territory plan; (b) for a development that is in a future urban area— (i) the development is undertaken by an entity other than the Territory or a territory authority; and (ii) the territory plan states that the development is not (2) However, if a development is an exempt development and a prohibited development, the development is taken not to be a prohibited development.

155 Development applications prohibited except in stated circumstances The territory planning authority must not accept a development application for approval of a prohibited development other than under 1 of the following sections: (a) section 156 (Applications for development approval in relation to use for otherwise prohibited development); (b) section 157 (Applications in anticipation of major plan amendment); (c) section 159 (Applications for development encroaching on adjoining land if development prohibited).

156 Applications for development approval in relation to use for otherwise prohibited development (1) This section applies to a development proposal in relation to a use of land, or of a building or other structure on land, if the use is— (a) an authorised use to which section 148 (Authorised use that is not exempt) applies; and (b) a prohibited development. Note Because the use is not an exempt development, s 154 (2) does not apply. (2) A person may apply to the territory planning authority for development approval of the development proposal. (3) If an application is made under subsection (2), the use is taken not to be a prohibited development. authorised use, of land, or of a building or other structure on land— (a) means a use authorised by— (i) a lease; or (ii) section 276 (Use of land for leased purpose); or (iii) a preserved lease; and 6 months before the use if the lease is renewed within 6 months after the expiry. Lisa is the lessee of land on which she operates a service station in accordance with the lease. The territory plan is amended and it now prohibits using land to operate service stations in her area. Lisa is not affected since her existing use of the land as authorised by the lease is a type of exempt development and taken not to be prohibited (see s 147 and s 154).

However, Lisa has plans to demolish and rebuild the service station. If she does this, her use of the land is no longer exempt (see s 148). Subsection (2) allows Lisa to apply for development approval for the development proposal and s (3) provides that the use is taken not to be prohibited development.

157 Applications in anticipation of major plan amendment (1) This section applies if the territory planning authority has— (a) prepared a draft major plan amendment in accordance with section 60; and (b) given the draft major plan amendment to the Minister for approval under section 67. (2) A person may apply for approval of a relevant development proposal after the day the draft amendment is given to the Minister as if the draft amendment were in force. (3) The development application must— (a) identify the draft amendment; and (b) state that the application is made as if the draft amendment were in force. (4) Despite section 52 (Effect of territory plan)— (a) chapter 6 (Significant development), this chapter and chapter 10 (Leases and licences) apply to the development application as if the draft amendment were in force; and (b) the territory planning authority must assess the application as if the draft amendment were in force; and (c) the territory planning authority must, in publicly notifying the development application under division 7.5.4 (Public notification of development applications)— (i) identify the draft amendment; and

(ii) state that the application is made in accordance with the relevant development proposal, in relation to a draft major plan amendment, means a development proposal for a prohibited development that would not be prohibited if the draft amendment were in force. Note A development application made under this section may be decided only if the draft plan amendment has commenced under s 80 or s 81 (see s 185 (2) (a)).

158 Declaration for development encroaching on adjoining land if development prohibited (1) This section applies to a development proposal in relation to a use of land, or of a building or other structure on land, if— (a) the land, building or other structure adjoins unleased land or land for which the Territory is the registered proprietor (the adjoining land); and (b) the use would encroach no further onto, over or under the adjoining land than the distance prescribed by regulation (the encroachment); and (c) the use is a prohibited development on the adjoining land. (2) A person may apply to the territory planning authority for a declaration that the development proposal satisfies the following criteria: (a) the encroachment is a minor part of the development; (b) undertaking the proposal in relation to the adjoining land would enable a more logical and appropriate development than if there were no encroachment;

(c) the proposed use of the land would— (i) not detract from the amenity of the surrounding area; and (ii) promote better land management; and (iii) not unreasonably restrict public access to other land; (d) the territory planning authority is not prohibited from granting by direct sale a lease over the encroachment. (3) The application must include— (a) if the adjoining land is unleased land—written consent by the custodian of the land to the encroachment; and (b) a copy of any written information given to the custodian, with each page— (i) signed by the custodian; and (ii) numbered by stating the page number and the total number of pages provided. (4) Not later than 10 working days after the day the person applies to the territory planning authority for a declaration under subsection (2), the authority must— (a) make the declaration; or (b) refuse to make the declaration. (5) If the territory planning authority makes the declaration— (a) the authority must publish the declaration on the authority’s website; and (b) the applicant must obtain a lease or licence over the land.

159 Applications for development encroaching on adjoining land if development prohibited (1) If the territory planning authority has made a declaration under section 158 in relation to a development proposal— (a) the applicant for the declaration may apply to the authority for development approval of the proposal; and (b) the use is taken not to be a prohibited development on the adjoining land. (2) Despite section 52 (Effect of territory plan)— (a) chapter 6 (Significant development), this chapter and chapter 10 (Leases and licences) apply to the application as if the territory plan were amended in accordance with section 88 (Rezoning— development encroaching on adjoining land) to change the boundary of the land consistent with a proposal under section 158; and (b) the authority must assess the application as if the territory plan were amended in accordance with section 88. Note 1 A development application made under this section may be decided only if the territory plan has been amended under s 88 (see s 185 (2) (b)). Note 2 The territory planning authority must not grant a lease over an encroachment on adjoining land by direct sale unless the territory plan has been amended under s 88 (see s 266 (1) (i)). adjoining land—see section 158 (1) (a). encroachment—see section 158 (1) (b).

Prohibited waste facility development applications Division 7.3.2 Division 7.3.2 Prohibited waste facility development

160 Object—div 7.3.2 The object of this division is to contribute to the achievement of the object of this Act by limiting the development of new waste facilities in the division of Fyshwick.