Planning (Transitional Provisions) Regulation 2023

The regulation introduces or refines several concepts that are central to understanding the transitional period.

Interim territory plan: An interim territory plan is a planning instrument created under the Planning Act 2023, Chapter 20, to operate between the repeal of the old Territory Plan 2008 and the finalisation of a permanent replacement. The regulation clarifies that this interim plan is the territory plan “for all purposes” (s 609(4)). That means it has the same legal effect as a final plan: it binds decision-making on development applications, lease grants, and planning approvals. The interim plan may be amended while it is still under review by the Assembly committee, subject to the notification obligation in section 609(6).

Inquiry period: Defined in new section 609(8) as the period beginning on the day the Minister gives the interim territory plan to the relevant Assembly committee and ending either on the day the committee decides not to hold an inquiry or, if it decides to hold one, on the day it reports to the Minister. During this period, the plan can be amended under the normal amendment processes, but any such amendment must be notified to the committee within five days. The definition ensures that the window for possible inquiry is clearly bounded.

Pre-grant process: This concept already existed in the Act but is expanded by item [1.5]. It now specifically includes “a government entity giving notice of an auction, tender, ballot or direct sale”. This covers the main ways the ACT government invites applications for Crown leases. If a pre-grant process was started before the commencement day, the resulting lease can be granted even if it is not consistent with the new territory plan, as long as it is consistent with the old Territory Plan 2008 (s 621(2B)). This grandfathering preserves the value of bids or applications lodged in reliance on the old planning rules.

Major plan amendment and minor plan amendment: References in new section 610(4A) to amendments “started, but not commenced” and to minor amendments for which “limited consultation has been undertaken but the amendment has not commenced” tie into the Act’s Part 5.2 and 5.3. A major plan amendment “starts” when the planning authority gives notice under section 53(1). A minor amendment requires consultation but may be at a stage where consultation has occurred but the amendment is not yet in force. The regulation protects these in-flight processes from being derailed by a Legislative Assembly resolution confirming the interim plan.

Further lease: New section 622(3A) applies to applications for further leases (typically the renewal or variation of an existing Crown lease). The same old-plan consistency override applies: the grant of the further lease need not be consistent with the new territory plan if it is consistent with the repealed Territory Plan 2008 as in force immediately before commencement day. This ensures that lessees who had already lodged applications or had deals in train under the old regime are not forced to renegotiate or abandon their plans.

Grandfathering: A recurring concept in the regulation, though not explicitly named. Items [1.4] and [1.6] exempt certain lease grants from section 52 of the Act (which requires consistency with the territory plan). The condition is consistency with the old plan. This effectively grandfathers the planning rules that applied before the commencement day for those specific transactions. The regulation does not require that the old plan remain consistent with the new regime; it simply overrides the new consistency requirement for those cases.

All of these concepts operate within a sunset structure: the regulation itself expires on the same day as Chapter 20 of the Act (5 Expiry), which according to the endnote is 27 November 2026. Once the regulation expires, the modified provisions revert to their default form or disappear altogether. This gives a clear time limit to the transitional arrangements.

The regulation affects several distinct groups. The most directly impacted group is the territory planning authority (the ACT Planning and Land Authority or its successor). The authority must manage the interim territory plan, including any amendments during the inquiry period, and comply with the five-day notification requirement under new section 609(6). The authority also must process pre-grant processes and further lease applications in a way that respects the grandfathering rules - that is, it must accept consistency with the repealed Territory Plan 2008 as satisfying the consistency requirement, even if the new territory plan would otherwise require a different outcome.

Government entities that give notice of auctions, tenders, ballots or direct sales for Crown leases are affected because the regulation broadens the definition of “pre-grant process” to expressly include those notices. This means that any such notice given before the commencement day will trigger the grandfathering protection for the resulting lease. Government entities therefore need to be aware that their standard pre-commencement processes are now captured and that the resulting leases will be valid under the new Act even if they conflict with the new territory plan.

Applicants for Crown leases and existing lessees are directly affected. Any person who participated in a pre-grant process (auction, tender, ballot or direct sale) before the commencement day can receive a lease that is consistent with the old Territory Plan 2008, regardless of whether it matches the new plan. Similarly, an existing lessee who applied for a further lease before the commencement day can have that further lease granted under the old plan’s rules. This provides certainty for those who acted in reliance on the old regime, but it also means they cannot be forced into the new planning framework for that particular transaction.

The Legislative Assembly and its committees are affected by the regulation’s handling of the interim plan. The Assembly can resolve to confirm the interim plan, but that resolution does not wipe out pending major plan amendments or minor amendments that had already undergone limited consultation (s 610(4A)). The relevant committee also gains a notification right: it must be told within five days of any amendment made during the inquiry period (s 609(6)). However, non-compliance with that notification does not invalidate the amendment, so the committee’s right is more procedural than substantive.

Developers, landowners, and property investors are indirectly affected. The regulation preserves the planning regime that applied to transactions already in motion, which reduces the risk that new planning rules would scupper a deal. On the other hand, it creates a two-track system during the transitional period: some leases will be granted under the old plan, while others will be subject to the new interim plan. This can lead to inconsistencies in land-use regulation, potentially creating inequities between projects that were at different stages when the Act commenced.

Legal practitioners and conveyancers need to understand the grandfathering provisions to advise clients correctly. For example, a client who bid at an auction before 27 November 2023 may be entitled to a lease that departs from the new territory plan, and the practitioner must ensure the lease documents reflect that consistency with the old plan rather than the new plan.

The regulation does not appear to affect the general public directly in their capacity as objectors or community members, because the grandfathering overrides the consistency requirement, meaning that the protections of the new territory plan (e.g., restrictions on certain developments) may not apply to these grandfathered leases. Community groups might find that developments that were approved under the old plan can proceed even if the new plan would have prevented them.

The regulation imposes only one clear duty: the territory planning authority must give the relevant Assembly committee written notice of any amendment to the interim territory plan within five days of the amendment being made, provided the amendment occurs during the inquiry period (new s 609(6)). This is a procedural duty aimed at keeping the committee informed during its review. However, enforcement is weak: subsection 609(7) states that non-compliance does not invalidate the amendment, so the duty is effectively directory rather than mandatory. The committee could still complain or use other mechanisms to compel compliance, but the amendment stands regardless.

The regulation also imposes what might be called a duty of accurate administration: the planning authority must correctly apply the grandfathering provisions when deciding whether a lease grant or further lease is consistent with the territory plan. Under new sections 621(2B) and 622(3A), the authority must accept consistency with the repealed Territory Plan 2008 as a valid alternative to consistency with the new territory plan. If the authority wrongly rejects a lease on the basis that it is not consistent with the new plan, when in fact it matches the old plan, the applicant could challenge that decision (likely via the ACT Civil and Administrative Tribunal or Supreme Court). But the regulation does not create any new rights of review or appeal - it modifies the substantive test that the authority applies.

The regulation creates rights for applicants and lessees. First, a person who participated in a pre-grant process that started before the commencement day has the right to have the resulting lease granted without consistency with the new territory plan, provided the lease is consistent with the old plan (s 621(2B)). This is a substantive right that overrides the general rule in section 52 of the Act. Second, a person who applied for a further lease before the commencement day has the same right for that further lease (s 622(3A)). These rights are not absolute - the lease must still be consistent with the old plan as in force immediately before commencement day - but they remove the risk that the new plan would block the grant.

The regulation also gives the territory planning authority a power: it may amend the interim territory plan during the inquiry period under Parts 5.2 and 5.3 (s 609(5)). This power exists despite the fact that the plan is under Assembly review. The authority can thus respond to urgent issues or correct errors without waiting for the committee to finish its inquiry. The price of that power is the five-day notification obligation, but as noted, non-compliance does not invalidate the amendment.

The Legislative Assembly gains a right to receive notice of amendments during the inquiry period (through the relevant committee). But the Assembly’s broader right to resolve to confirm the interim plan under section 610 is adjusted: the resolution does not affect pending amendments (s 610(4A)). This means the Assembly cannot use its confirmation power to derail amendments that are already progressing through the statutory process. In practical terms, this protects the integrity of the amendment process, but it also means the Assembly may confirm a plan that is about to be amended in ways it does not yet know about.

There are no new duties for private citizens or businesses under this regulation. The duties fall solely on government bodies.

The regulation itself creates no offences and imposes no penalties. The sole duty (the five-day notification to the Assembly committee under s 609(6)) is not backed by any penalty or sanction. Non-compliance is “not invalidating” (s 609(7)), meaning that even a deliberate failure to notify does not affect the legal validity of the plan amendment. There is no fine, no criminal liability, and no civil penalty for breaching this duty. The Enforcement of the underlying Planning Act’s provisions (e.g., development without approval, breach of planning conditions) are not altered by this regulation - those penalties (penalty units at $160 individual/$810 corporation) remain in place for the substantive planning offences that would apply during the transitional period.

If a lease grant is made in circumstances that do not satisfy the grandfathering conditions - for example, if a grant is inconsistent with both the new plan and the old plan - then the grant may be invalid under the Act because it would breach section 52 (effect of territory plan). In that case, enforcement would proceed under the Act’s ordinary mechanisms: the lessee could be required to remedy the breach, or the grant could be challenged by a third party or the planning authority itself. But the regulation does not create any specific enforcement tools for the transitional provisions.

The absence of penalties for non-compliance with the notification duty means that the legislative intent is for that duty to be an accountability mechanism rather than a strict legal obligation. The Assembly committee could still call the authority to account through political processes, question time, or committee hearings, but it cannot rely on the courts to enforce compliance.

The regulation operates entirely within the framework of the Planning Act 2023 (A2023-18). It modifies only Chapter 20 of that Act, and it expressly refers to several other parts of the same Act: Part 5.2 (major plan amendments), Part 5.3 (minor plan amendments), section 52 (effect of territory plan), and section 263 (grant of leases). It also references the repealed Territory Plan 2008 (NI2008-27) as the benchmark for consistency under the grandfathering provisions. So the regulation’s interaction is almost exclusively internal to the Planning Act.

The regulation also interacts with the Legislation Act 2001. The notes confirm that the regulation itself is made under the Planning Act 2023, which is an empowering Act. The regulation is a subordinate law within the meaning of the Legislation Act 2001. The expiration clause (s 5) uses a trigger from the parent Act: it expires when section 602 of the Planning Act expires. That section provides for the expiry of Chapter 20. So the regulation is tied to the sunset of the parent Act’s transitional chapter.

There is no explicit interaction with the Land Titles Act 1925, the Leases (Commercial and Residential) Act 2019, or any other ACT law. However, because the regulation affects the validity of lease grants under the Planning Act, those grants may then have implications under the Land Titles Act when they are registered. If a lease is granted in reliance on the grandfathering provisions, it should be treated as a validly granted Crown lease for all purposes, including registration. But the regulation does not modify the Land Titles Act, so the usual requirements for registration (e.g., consent of the relevant Minister, appropriate form) apply.

The regulation also interacts with the common law principle of legitimate expectation. Persons who had participated in pre-grant processes before the commencement day might have had a legitimate expectation that the lease would be granted under the planning rules in force at that time. The grandfathering provisions give effect to that expectation by deeming the lease to be granted under the Act and overriding the consistency requirement. This avoids the need for litigation based on estoppel or administrative law grounds.

There is no interaction with Commonwealth laws (such as the Environment Protection and Biodiversity Conservation Act 1999) because the regulation is purely about ACT planning consistency requirements, not about Commonwealth triggers.

Also note that the regulation’s definitional amendment for “pre-grant process” (item [1.5]) now includes “direct sale” as well as auction, tender and ballot. This aligns the transitional provisions with the full range of disposal methods available under the Government’s land release programs. It ensures that a direct sale process (e.g., for a strategic site or affordable housing project) that was announced before commencement day is treated the same as an auction process for grandfathering purposes.

The Act (Planning Act 2023) has its own amendment history set out in the endnotes of the republication. The regulation, however, is made under that Act and has not itself been amended since inception. The republication is “Republication No 1” effective 27 November 2023, and the regulation is “not amended”. The amendment history in the endnotes (endnote 4) shows only that section 2 (commencement) was omitted as a consequence of the Legislation Act 2001, section 89(4) - a routine editorial step when republications remove the commencement provision because it is no longer necessary. No substantive amendments have been made to this regulation. It came into effect on 27 November 2023 (the same day as the Planning Act 2023 commenced) and will expire on 27 November 2026.

The regulation’s legislation history (endnote 3) indicates it was notified on the legislation register on 24 November 2023, three days before commencement. That is a very compressed timeline - barely enough time for stakeholders to read the regulation before it took effect. But given that the regulation largely preserves the status quo for pending transactions, the impact of the short notice period is likely minimal.

No amendment history for the Act’s Chapter 20 is given in this document, but the schedule modifies that chapter. The fact that the regulation has not been amended suggests that either the transitional arrangements operated as intended, or no problems have been identified yet that would require amendment. Given the regulation expires in 2026, it is possible that no amendments will be made unless a significant deficiency emerges.

For legal researchers, the key point is that the regulation is static: what you see in this republication is the only version that exists. There are no uncommenced amendments, no modifications, and no pending changes. The regulation will remain in its current form until it expires.

The regulation itself has not been the subject of any reported litigation. Because it is a transitional subordinate law that has only been in force since late 2023, and many of its provisions are protective of existing rights (rather than creating new causes of action), it is unlikely to have been litigated yet. The absence of any judicial consideration of the regulation is noted in the endnotes: there is no reference to any court or tribunal decisions.

However, it is possible that litigation has arisen under the underlying Planning Act that has touched on these transitional provisions. For example, a dispute over whether a particular lease grant was consistent with the old plan might reach the ACT Civil and Administrative Tribunal or the Supreme Court. In such a case, the regulation would be central to the interpretation of sections 621 and 622. But no such case is recorded in the regulation’s endnotes, and the republication does not include any case citations.

Practitioners should be aware that the grandfathering provisions override the ordinary consistency requirement, so any challenge to a lease granted under these provisions would need to focus on whether the lease is in fact consistent with the repealed Territory Plan 2008, not whether it is consistent with the new territory plan. That changes the likely evidence and expert reports in any challenge.

The regulation also creates a potential issue: if an amendment to the interim territory plan is made without the required five-day notice to the committee, the amendment remains valid (s 609(7)). A party who is adversely affected by that amendment could argue that the failure to comply with the notification requirement is a breach of the Act, but they cannot use it to strike down the amendment. They would have to challenge the amendment on its merits under Parts 5.2 or 5.3, which is a separate process.

Given that the regulation is time-limited and has not yet been tested, its litigation history is essentially a blank slate. Future litigation, if any, will likely involve questions of whether a particular pre-grant process was properly commenced before the commencement day, and whether the lease is consistent with the old plan as in force immediately before that day.

There are several traps for the unwary in this regulation. First, the definition of “pre-grant process” now includes direct sales (item [1.5]), but the grandfathering protection in section 621(2B) only applies if the lease is consistent with the Territory Plan 2008 “as in force immediately before the commencement day”. That is a specific snapshot - if the old plan was amended after commencement day (it has been repealed, so that should not happen), it would not apply. But the old plan may have been subject to amendments before repeal that were not in force as at commencement day because they commenced later or were still in progress. Practitioners need to check exactly what version of the Territory Plan 2008 was in force on 26 November 2023 (the day before commencement). The regulation requires consistency with that precise moment in time, not with any subsequent notional version.

Second, the regulation does not grandfather all pre-commencement lease processes - only those to which a “pre-grant process” relates. If a lease was negotiated privately without any of the listed processes (auction, tender, ballot, direct sale), it may not qualify for the grandfathering. “Direct sale” is now included, but what constitutes a direct sale? The regulation does not define it, so one must rely on the ordinary meaning or any policy guidance. If a government entity had merely held preliminary discussions but had not given notice of a direct sale, the process may not be covered.

Third, the time limits: the regulation expires on the same day as section 602 of the Act (which provides for expiry of Chapter 20). According to the endnote, that is 27 November 2026. After that date, the modifications cease to have effect. That means any pending pre-grant processes or further lease applications that have not been completed by that date will lose the grandfathering protection. Parties involved in such transactions should ensure settlement or registration occurs well before the expiry date, or risk being subject to the full force of the new territory plan.

Fourth, the five-day notification obligation in section 609(6) appears to apply only to amendments made during the inquiry period. If the committee decides not to hold an inquiry, the inquiry period ends, and subsequent amendments do not need to be notified to the committee under this provision. That potentially allows the planning authority to amend the interim plan after the committee is out of the picture without any mandatory notice. While the authority may still notify voluntarily, there is no legal duty.

Fifth, the interaction between the grandfathering provisions and section 52 is nuanced. Section 52 requires consistency with the territory plan. New sections 621(2B) and 622(3A) say the grant “need not be consistent” with the territory plan if it is consistent with the old plan. That is an exemption from a requirement, not a positive assertion that the grant is valid. The grant must still comply with all other parts of the Act, such as the requirement for the Minister to consent, the terms of the lease, and any conditions. If the lease itself contravenes other laws (e.g., a restrictive covenant in the Crown lease or a residential zones policy under the old plan that is not about consistency with the plan itself), the grandfathering may not save it.

Sixth, item [1.3] (new section 610(4A)) protects only major plan amendments that were “started but not commenced” and minor amendments for which “limited consultation has been undertaken”. The definition of “started” for major amendments is linked to section 53(1) - notice to the Minister. For minor amendments, the regulation does not define “limited consultation”. This could lead to disputes over whether a particular level of public engagement qualifies as “limited consultation”. The planning authority should document precisely when and how consultation was undertaken to avoid ambiguity.

Seventh, there is no provision in the regulation for any review or appeal against a decision to refuse a lease on grounds that the old plan consistency is not satisfied. If the authority determines that the old plan would not allow the proposed use, the grant can be refused. The applicant would then have to challenge that refusal under the Act’s usual merits review provisions, but those provisions will now be applying the old plan’s standards rather than the new plan’s standards. This could lead to outcomes that the new plan would have changed, which may catch applicants off guard.

Compliance with this regulation is primarily a matter for government entities and applicants, not for the general public. The regulation does not impose any new record-keeping, reporting, or self-assessment duties on private persons.

For the territory planning authority: The main compliance obligation is the notification duty in section 609(6). During the inquiry period for an interim territory plan, if the authority makes any amendment to that plan, it must give the relevant Assembly committee written notice within five days of the amendment being made. This requires the authority to track the inquiry period timeline closely and to ensure that amendment decisions are promptly communicated. The authority should also maintain a register of amendments made during that period, along with evidence of notification. Even though non-compliance does not invalidate the amendment (s 609(7)), the authority should treat the duty seriously to maintain good governance and avoid parliamentary criticism. The authority should also ensure that its decision-makers are aware of the grandfathering provisions in sections 621(2B) and 622(3A) so that lease grants and further leases that qualify under those provisions are not incorrectly rejected for inconsistency with the new territory plan. Standard operating procedures for lease assessment should include a step to check whether the transaction is covered by a pre-grant process or an application made before the commencement day, and if so, to test consistency against the old plan rather than the new plan.

For government entities conducting land sales: Entities that give notice of auctions, tenders, ballots or direct sales must ensure that any such notices given before the commencement day are recorded and that the resulting lease documentation references consistency with the Territory Plan 2008 rather than the new plan. They should also ensure that the lease grant is processed before the regulation expires on 27 November 2026. If the grant is delayed beyond that date, the grandfathering protection will lapse and the lease will need to be consistent with the new territory plan, which may require amendments or a fresh process.

For applicants and lessees: If you have participated in a pre-grant process (auction, tender, ballot or direct sale) that was notified before 27 November 2023, you should confirm that the process is captured by the expanded definition. Request written confirmation from the government entity that the process qualifies. When the lease is offered, check that it is consistent with the Territory Plan 2008 as in force immediately before that date. If you have concerns about consistency, obtain legal advice before signing. For further lease applications lodged before commencement day, similarly ensure the application is still live and that the lease grant terms match the old plan. Monitor the progress of the grant to avoid expiry of the regulation.

For legal practitioners: You should advise clients to act promptly on pre-commencement transactions. The regulation has a clear sunset. Practitioners should also be prepared to argue the meaning of “limited consultation” in the context of minor plan amendments under section 610(4A). If a client is in the middle of a minor plan amendment process when the Assembly confirms the interim plan, the amendment may be saved by this provision - but only if sufficient consultation had already occurred. Practitioners should advise the client to document all consultation steps meticulously.

For the Legislative Assembly and its committees: The committee reviewing the interim territory plan should be aware that it may receive notification of amendments within five days. It should have a process in place to acknowledge receipt and decide whether to adjust its own inquiry schedule in light of the amendment. If an amendment is notified but the committee believes it is inappropriate or raises new issues, it could request further information or extend its inquiry, but it cannot invalidate the amendment.

Overall, the regulation is not a compliance-heavy instrument. Its biggest practical impact is on the legal standard for lease grants: compliance now requires checking the old plan rather than the new one for a specific set of transactions. That is a substantive change that could catch out officers who are trained on the new Act and may not think to look at the repealed plan. Training and checklists should be updated accordingly.