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PLANNING AND LAND (CONSEQUENTIAL AMENDMENTS) BILL 2002


2002


LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY










PLANNING AND LAND
(CONSEQUENTIAL AMENDMENTS) BILL 2002





EXPLANATORY MEMORANDUM













Circulated by authority of the
Minister for Planning
Mr Simon Corbell MLA
PLANNING AND LAND (CONSEQUENTIAL AMENDMENTS) BILL 2002

Outline


The Planning and Land (Consequential Amendments) Bill 2002 provides for the amendment of various Acts [in particular the Land (Planning and Environment) Act 1991 (the “Land Act”)] and regulations as a consequence of the enactment of the Planning and Land Act 2002. The Bill also makes a number of minor technical and corrective amendments.

The principal amendments to the Acts and regulations aim to maintain the power of the Executive and the Minister in terms of setting broad policy directions. The Planning and Land Authority is to assume responsibility for management of many of the functions governed by the Land Act. Broadly, the Authority has the following general functions:

• administration of the Territory Plan;
• granting and administration of Crown leases on behalf of the Australian Capital Territory Executive;
• building regulation;
• management of certain unleased Territory Land, including the granting of licences in some circumstances; and
• processing and determination of development proposals.

The Bill makes a significant number of changes to the Land Act and the Land (Planning and Environment) Regulations 1992 (set out in the attached Tables 1 and 2) and to other legislation (set out in Table 3), to transfer to the Planning and Land Authority the responsibility for management of the above functions.

The Minister will continue to have “call-in” powers under the Land Act. The Bill further clarifies the call-in process by providing for the publication of advice received from the Authority or Planning and Land Council.

The Planning and Land Authority will have a new power to reconsider its own decision on a development application upon application by the proponent. That power does not affect the right of a person to seek a review of an original decision in the Administrative Appeals Tribunal. It is an additional function, not in substitution for the existing review functions.

Part 3 of the Act – Heritage is not substantially amended.

Similarly, Part 4 of the Land Act which relates to environmental assessments and inquiries, is not significantly amended. A note in Division 4.2 clarifies that the Environment Minister (as the Minister responsible for administering Part 4) may delegate functions to the Planning and Land Authority.

Several Acts and regulations are amended to align with changes to the Land Act, particularly references to a ‘planning authority’, and the transfer of certain functions to the new Planning and Land Authority.

The amendments effected by this Bill are broadly categorised in the attached Tables as follows:

1. transfer of functions from the Executive to the Minister

(example: section 26 of the Land Act is amended to provide that the Minister, not the Executive, may give directions to the Planning and Land Authority)

2. transfer of functions from the Minister or the Executive to the Planning and Land Authority

(example: sections 184A and 187A of the Land Act are amended to empower the Planning and Land Authority to execute a variation of a lease. Note that any change of use charge associated with a lease variation remains payable to the Territory)

(example: notification of development applications under section 229 of the Land Act will now be undertaken by the Planning and Land Authority rather than the Minister)

3. provisions that give effect to the intention that the Planning and Land Authority, and the Planning and Land Council, will perform their respective functions in an independent and accountable way

Some of the amendments effected by this Bill entail the addition of a function or of an opportunity or responsibility to be involved in certain processes. Others involve the amendment of provisions to allow the proper performance of functions by the Planning and Land Authority or the Planning and Land Council.

(example: the definition of “draft plan variation” in section 5 of the Land Act has been amended to make clear that a reference to a draft plan variation, also referred to in the Act as a “draft variation”, includes a reference to such a draft as revised)

(example: because the Planning and Land Authority will have responsibility, on behalf of the Executive, for the granting of leases, a new section 160B is inserted into the Land Act providing the necessary authorisation to the Planning and Land Authority to allow it to perform that function)

(example: section 246 has been inserted into the Land Act to provide for the Planning and Land Authority to undertake an internal reconsideration of a decision on a development application – a new process in addition to the availability of any review by the Administrative Appeals Tribunal)

4. transfer of leasing and licensing functions from the Executive directly to the Planning and Land Authority to perform on behalf of the Executive

The Executive gives a general authorisation to the Planning and Land Authority in relation to granting and administering leases and licences. The Land Act now expressly provides the Executive’s authorisation to the Planning and Land Authority to perform many of those functions.

(example: section 161 of the Land Act is amended to provide that the Planning and Land Authority may grant leases)

(example: section 188 of the Land Act now provides for the termination of leases to be undertaken by the Planning and Land Authority rather than the Executive)

5. insertion, amendment or deletion of definitions and references

Various provisions are amended to reflect new or changed entities or situations. Others are amended only as a consequence of the amendment, omission or addition of other provisions.

(example: in clause [1.1], section 5 of the Land Act, definition of “background papers”, is amended as a result of the Minister’s amended powers to give directions to the Planning and Land Authority)

(example: the definition of “authority” in the Land Act, and the definition of “planning authority” in the Legislation Act 2001, are omitted and a new definition of “Planning and Land Authority” inserted in the Legislation Act)

6. renumbering or correction of provisions

Several provisions have been renumbered following the insertion or deletion of provisions. Other amendments are merely corrective, or reflect changes in drafting practice.

(example: section 19(6) of the Land Act contains a reference to section 21(6)(b). The reference to the title of that provision has been omitted)

(example: section 19B(2) of the Land Act is deleted because it is repeated in section 21(3). Section 19B is to be renumbered when the Act is next published)

The attached Tables 1, 2 and 3 set out the amendments made by this Bill.

If a Table nominates an amendment under a particular category, and that category is followed by the letter “a”, the provision has been substantially redrafted, either to improve its clarity or because the number of changes to the provision made piecemeal amendment difficult.

Some provisions may fall within more than one category. The category nominated is that which is considered to be the more significant change.

Financial Implications


There are no financial implications, additional to those arising from the governance structures outlined in the Planning and Land Bill 2002, resulting from this Bill.

CLAUSE NOTES


Clauses 1 and 2 – Name of Act and commencement – are machinery provisions that specify the name of the Act and provide for the commencement of its provisions.

Clause 3 – Notes – notes in the Act are explanatory and not part of the Act.

Clause 4 – Acts and regulations amended – schedules 1 – 3


Table 1 – Schedule 1, amendments of Land (Planning and Environment) Act 1991
Table 2 – Schedule 2, amendments of Land (Planning and Environment) Regulations 1992
Table 3 – Schedule 3, amendments of other Acts and regulations
TABLE 1

SCHEDULE 1 - AMENDMENTS OF LAND
(PLANNING AND ENVIRONMENT) ACT 1991


Clause
Section
Amended


Category

Notes

Part 2

1.1
5 (b) (i) and (ii)
5
Directions of the Minister may now be under more than one Act
1.2
5 (b) (iii) to (vii)
6
Renumber when Act next republished
1.3
5(c)
5a
1.4
5
5a
Redrafted to make clear that a draft plan variation includes a revised draft
1.5
9(4) (d)
6
Corrects a cross-referencing error
1.6
9(4)
5
Revised taking into account the amendment to the definition in section 5
1.7
15
5a
1.8
19(6)
1
1.9
19B(2)
6
Omits section 19B(2), as it is repeated in section 21(3)
1.10
19B(3)
3
1.11
19B
6
Renumber when Act next republished
1.12
19C and 20
3a
The decision to exempt a draft plan variation from notification is given by the Planning and Land Authority rather than the Executive. The Authority must consult with the National Capital Authority before giving a draft plan variation to the Minister.
1.13
21
6
Corrects a reference to section 19(1)(c) and clarifies the section
1.14
26 Heading
1
Directions may now be given by the Minister
1.15
26(1)
1
“
1.16
26(2)
1a
“
1.17
26(4) (a)
1
“
1.18
27(2)
1
“
1.19
27(3)
1
1.20
28(1) and 29(2)
5
Section 26 now provides for directions to be given by the Minister
1.21
29(8) and (9), 30(3) and 30B
2
Administrative functions are transferred to the Planning and Land Authority

1.22
Division 2.4
3
Provisions relating to the establishment and functions of the Australian Capital Territory Planning Authority are removed -–the Planning and Land Authority is established by the Planning and Land Act 2002
1.23
Part 2 – several sections
1
Further references to “Executive” are changed to “Minister”
1.24
Part 2 – several sections
3
Further references to “authority” are changed to “planning and land authority”

Part 3

1.25
63 heading, (1), (2) and (3) (a)
3
References to “authority” are changed to “planning and land authority”
1.26
63(4)
5
1.27
63(4) (b)
3
1.28
63(5)
5
1.29
63(5) (b)
3
1.30
64(1)
1a
The Minister, not the Executive, may, on behalf of the Territory, acquire a place listed on the heritage places register
1.31
64(2), (3) and (4) and 71
1
The Minister, not the Executive, may acquire a place listed on the heritage places register. Further, it is clear from other provisions in section 71 that the Minister, rather than the Executive, was intended to make orders
1.32
92
3

Part 4

1.33
Division 4.1 – new note
5
A new note makes it clear that the Environment Minister may delegate to the Authority the Environment Minister’s functions under Part 4. Those functions may also be delegated to another person.
1.34
117(5)
3
1.35
125(7)
5

Part 5

1.36
160(1)
4a
The Authority may now grant leases on behalf of the Executive
1.37
160B
4
A new section 160B provides the Authority with the Executive’s authorisation to grant leases of Territory land
1.38
161(1)
4a
The Authority will grant leases on behalf of the Executive. The provision has been simplified.
1.39
163(2)
4
The Authority will grant leases on behalf of the Executive.
1.40
164(1)
4a
“
1.41
166(1)
1
The Minister, rather than the Executive, may establish a panel or direct an assessment
1.42
166(2)
1a
The new section 166A requires the Minister to direct the Authority in respect of the proposed grant of lease
1.43
168
4a
The amendment recognises that the Authority will grant leases on behalf of the Executive
1.44
171
4a
“
1.45
171A(1)
4
“
1.46
171A(5)
5
The provision has been clarified
1.47
172
4a
The amendment recognises that the Authority will grant leases on behalf of the Executive
1.48
172A(2)
4a
“
1.49
172B(2)
4a
“
1.50
173(1)
5
The definition of “lessee” is clarified
1.51
173(4)
4a
The amendment recognises that the Authority will administer leases on behalf of the Executive
1.52
173(5)
5
1.53
173(5)
5
1.54
173(7)
4a
The amendment recognises that the Authority will grant leases on behalf of the Executive
1.55
173
6
Renumber when Act next republished
1.56
177(3)
4a
The amendment recognises that lease rent will be reviewed by the Authority rather than the Executive
1.57
179(4)
4a
The amendment recognises that the Authority, rather than the Executive, will issue certificates of compliance
1.58
180(1) (d)
2a
The amendment recognises the transfer to the Authority of leasing responsibility
1.59
180(2)
5a
The section has been clarified
1.60
184A(1)
4a
The amendment recognises that the Authority will grant leases on behalf of the Executive
1.61
184D(2)
4a
“
1.62
185(b) (iii)
4
“
1.63
186C(2) (b) (i)
2
1.64
186C(4)
5
Provision not required, because the Authority will sign agreements
1.65
186D(6)
5a
The amendment recognises that the Authority, rather than the Executive, will consent to dealings in rural leases
1.66
187A(1)
4a
The amendment recognises that the Authority, rather than the Executive, will execute lease consolidations or subdivisions
1.67
188(5)(a) (iii) and (b)
2
1.68
189 and 190
4a
The power to recover land remains with the Executive, but a new section 189(4) authorises the Authority to act on behalf of the Executive
1.69
192 heading
3
1.70
192
3
1.71
209
4
The Authority may, on behalf of the Executive, grant leases of public land
1.72
214(2)
4a
The Authority may accept the surrender of a lease
1.73
216(1)
4
1.74
216(2A)
4
A new section 216(2A) protects the validity of a lease if access to a road has not been given
1.75
216
6
Renumber when Act next republished
1.76
216A
4a
The Authority is to provide the Minister with a statement about directly granted leases, and the Minister must present the statement to the Assembly
1.77
221
5a
The section has been redrafted to make it clearer
1.78
Part 5 - several sections
4
Further references to “Executive” are changed to “planning and land authority”
1.79
Part 5 – several sections
2
Further references to “Minister” are changed to “planning and land authority”

Part 6

1.80
222
5a
The definition of “approval” is amended in light of the new power to reconsider decisions
1.81
222
5
A new definition of “original decision” is inserted in light of the new power to reconsider decisions
1.82
222
5a
The definition of “relevant authority” reflects the removal of provisions relating to the Commissioner for Land and Planning
1.83
226(5)
5
The reference to the Minister is omitted as it is no longer required
1.84
226(7)
2a
Development applications may be altered or corrected by the Authority
1.85
226(8)
5
”
1.86
227(1) (f)
6
1.87
227(1) (g) to (i)
5
New paragraphs 227(1)(g) to (i) require:
- advice to the Minister from the Authority or the Planning and Land Council on a ‘call-in’,
- details of any reconsideration of a decision, and
- any minor amendments to an approval
to be placed on the register kept under this section
1.88
228(3)
2a
1.89
229(1) (a) (ii)
2
1.90
229A
3a
The “call-in” power has been amended to provide that the Minister may direct the Authority to refer a development application to the Minister. The Authority may not then determine the application, and must provide the Minister with advice about the application.
A new section 229B requires the Minister to advise the Authority whether the Minister has decided to determine the application. That advice is a notifiable instrument. The Minister must consider the advice of the Authority and the Planning and Land Council.
1.91
231(1) (a) (v)
New Section
5
The Minister, as the relevant authority, must take into account the comments of the Authority and the Planning and Land Council in determining an application
1.92
232(1)
2a
The Authority may direct an applicant to undertake notification of an application
1.93
232(2)
5
“
1.94
232(3)
5
“
1.95
232
5
Renumber when Act next republished
1.96
237(3)
2
1.97
237
5
Renumber when Act next republished
1.98
239
2
1.99
242
2a
The Authority is to give notice of approvals of development applications, including an approval after reconsideration under the new section 246A.
1.100
243(1)
2a
The Authority is to give notice of decisions on of development applications, including a decision after reconsideration under the new section 246A.
1.101
243(4)
2a
“
1.102
243
6
Renumber when Act next republished
1.103
244(a)
2
1.104
245(1)
6
The provision has been amended to make it clear that development applications are determined under section 230, not this section
1.105
245(3) (k)
3
The amendment recognises that the Authority will administer the implementation of development approvals
1.106
245(4)
6
An intended reference to section 230(4) is corrected
1.107
New subdivision 6.2.4 – sections 245A, 246, 246A, 246B and 246C
3
New sections 245A, 246, 246A, 246B and 246C provide for the Authority to reconsider a decision upon application by the applicant for an original approval. Application must be made within 4 weeks after the development application was first determined, and must set out the grounds for the requested changes. The decision must be reconsidered by a person other than the original decision maker. Any objector to the original approval will have an opportunity to comment on the proposed reconsideration. The Authority must either confirm or vary the original decision within 4 weeks after the day of the application for reconsideration, or the decision will be taken, under section 246B, to have been confirmed. Section 246C requires the Authority to give notice of the reconsidered decision to the applicant and any person who objected to the original application.
1.108
247(1)
2
The Authority will determine minor amendments to development approvals
1.109
247(3) (c)
5a
For consistency with the new power to reconsider decisions, the Authority must give notice to any objectors of a minor amendment to an approval
1.110
248
2
The Authority will attend to corrections of formal errors in approvals
1.111
249
5a
Section 249, providing for approval to take effect, is re-written to take into account the ability to make another decision following reconsideration
1.112
251(1) (c)
5a
The provision for expiration of approvals now accounts for approvals as reconsidered under section 246A. The default period for expiry now commences on the date the approval takes effect rather than the date on which it was given.
1.113
253
5
1.114
254
5
The reference to “Minister” is amended to “Environment Minister”
1.115
256(4BA) (a)
5
The reference to “Minister” is changed to “Environment Minister”
1.116
256(4BA) (b)
2
The Planning and Land Authority will have the power to make orders under section 256
1.117
256(4C)
2
“
1.118
256(6)
2
“
1.119
257(1)
2
“
1.120
257(1)(e)
2
“
1.121
258
5
1.122
259(1) (a)
2
1.123
260(2) and (3)
2a
The Authority will be responsible for notifying the Registrar General of certain orders
1.124
272(1)
2
1.125
Division 6.5
3
The provisions relating to the appointment, functions and tenure of the Commissioner for Land and Planning have been removed
1.126
275
2a
Section 275, relating to applications to the administrative appeals tribunal, by applicants, for review of decisions under Part 6 of the Act, has been reviewed in the light of changes in decision making responsibilities and decisions subject to review are presented in a new table format (Schedule 4, Part 1).

The new section 275A relates to ‘applicant appeals’ in respect of a decision which relies on matters being ‘to the satisfaction’ of an entity.
1.127
276(1)
5a
The section is re-worded to make it clearer, and to recognise that approvals are not given under section 245. This provision, and the new section 276(1A), also recognises that an approval may be one given on reconsideration under section 246A.
1.128
276
6
Renumber when Act next republished
1.129
278(1)
5a
1.130
278(3)
5a
A definition of “applicant” is inserted for the section
1.131
278
6
Renumber when Act next republished
1.132
279A
5
1.133
282(1) (f)
5
1.134
Part 6 – several sections
2
References to “Executive” are changed to “planning and land authority”
1.135
Part 6 – several sections
2
References to “Minister” are changed to “planning and land authority”
1.136
Part 6 – several sections
2
References to “relevant authority” are changed to “planning and land authority”

Part 7

1.137
282A
5a
The section is clarified, and many decisions subject to review are now set out in table format (Schedule 4, Part 2)

Part 8

1.138
283
5
A note is inserted referring to section 160B of the Act, which authorises the Planning and Land Authority to grant leases on behalf of the Executive
1.139
287A
3a
The Authority may approve most forms to be used under the Act
1.140
292
5a
For the purposes of consent to dealings in leases under section 180, the reference in section 180(1)(d)(i) has been relocated to a new section 292. Section 292 will expire one year after it commences.

1.141
Schedule 4
5a
Schedule 4 sets out decisions that may be reviewed in the Administrative Appeals Tribunal. The decisions do not, however, contain all of the decisions that may be reviewed – others appear in sections conferring jurisdiction on the Tribunal.
1.142
Dictionary
5
‘AAT’ is inserted into note 2
1.143
Dictionary
5
The definition of “authority” is no longer required
1.144
Dictionary
5
The definition of “commissioner” is no longer required
1.145
Dictionary
5
New definitions of “new application”, “original application” and “original decision” are inserted. They are used in connection with the reconsideration of decisions under the new subdivision 6.2.4.
TABLE 2

SCHEDULE 2 - AMENDMENTS OF LAND
(PLANNING AND ENVIRONMENT) REGULATIONS 1992


Clause
Section amended


Category

Notes
2.1
25(2)
2
2.2
35(2)
2
2.3
36(2)
2
2.4
39(1)
6
2.5
39(2)
6
2.6
Schedule 6, item 2
5
2.7
Schedule 7, item 2
5
2.8
Several provisions
2
References to ‘Executive’ are changed to ‘planning and land authority’
2.9
Several provisions
2
References to ‘Minister’ are changed to ‘planning and land authority’
2.10
Several provisions
2
References to ‘Minister’ are changed to ‘relevant authority’

TABLE 3

SCHEDULE 3 - AMENDMENTS OF OTHER ACTS AND REGULATIONS


Clause
Provision amended (Act/section)


Category

Notes




Part 3.1
Building Act 1972

3.1
5(1)
5
A new definition of “lease” is provided
3.2
5(1)
5
The definition of “Territory planning authority” is redundant, as “planning and land authority” is defined in the Legislation Act 2001
3.3
9(5)
2
The Authority will manage building control
3.4
44(4)
5
3.5
46(3)
5
3.6
53AB(1) (a) (iii), (3) and (4)
5
3.7
54B(1)(a) and (b)
5a
The provision is clarified
3.8
74(2), (3) and (4)
2a
The Authority will have responsibility for the administration of fidelity fund schemes
3.9
79(1) and (2)
2a
“
3.10
80(1)
2a
“
3.11
83(3) and (4)
2a
“
3.12
89 – heading
5a
“
3.13
89(2)
2a
“
3.14
Several sections
2
Further references to “Minister” are changed to “planning and land authority”
3.15
Several sections
2
Further references to “Minister” are changed to “authority”




Part 3.2
Common Boundaries Act 1981

3.16-
Division 2.2 heading
2
The Authority may require fences to be erected
3.17
26(b)
2
“
3.18
Several sections
2
“
Part 3.3

Community Title Act 2001

3.19

13(1)(b)
2
3.20

21(2)
2a
3.21

23
5
3.22

24
5
3.23

25(2)(b)
5a
3.24

28(2)(d)
2
3.25

89(6)(b)
2
3.26

Several sections
2
References to “Minister” are changed to “planning and land authority”
3.27

Several sections
5
References to “Minister” are amended to “authority” as a consequence of changes to earlier references, from “Minister” to “planning and land authority”




Part 3.4

Electoral Act 1992

3.28

39(3)(b)
5




Part 3.5

Energy Efficiency Ratings (Sale of Premises) Act 1997

3.29

3(a)
5




Part 3.6

Environment Protection Act 1997

3.30

21A(3)(a) and 164 (2)
5




Part 3.7

Gungahlin Development Authority Act 1996

3.31

7(1)(d)
6
3.32

7(1)(e)
6
The provision is redundant and has been deleted”
Part 3.8

Heritage Objects Act 1991

3.33

4(1)
5
The definition of “authority” is redundant




Part 3.9

Housing Assistance Act 1987

3.34

9(1)(a)
2a
The provision no longer refers to grants of leases by the Executive
3.35

16(5)
2
3.36

17(2)
6
The Leases Act 1918 was repealed in 1992
3.37

17(5)
6
“




Part 3.10

Lands Acquisition Act 1994

3.38

115
6
Section omitted - judicial notice is now provided for in the Evidence Act 1971, section 10H
3.39

Several sections
2
The acquisition function will be managed by the Authority




Part 3.11

Land Titles Act 1925

3.40

72A(1)
2a




Part 3.12

Land Titles (Unit Titles) Act 1970

3.41

7(2)
5
3.42

29
2a
As the Authority will grant further leases, the section has been amended and reworded to make it clearer




Part 3.13

Legislation Act 2001

3.43

Dictionary part 1.1
5
New definition of “chief planning executive”
3.44

Dictionary part 1.1
5
Definition of “Commissioner for Land and Planning” is no longer needed
3.45

Dictionary part 1.1
5
New definition of “land development agency”
3.46

Dictionary part 1.1
5
New definition of “planning and land council”
3.47

Dictionary part 1.1
5a
Definition of “planning authority” is deleted and “planning and land authority” inserted




Part 3.14

Remuneration Tribunal Act 1995

3.48

10(1) (o)
5
The reference to the Commissioner for Land and Planning is no longer required
3.49

10(1)
5
Renumber when Act next republished




Part 3.15

Sale of Motor Vehicles Act 1977

3.50

6B
5
Definition of “relevant chief executive” is no longer required
3.51

10(1)(g)
5
The Authority will provide certificates regarding compliance with lease provisions
3.52

11(1)(h)
5
“
3.53

14B(e)
5
“
3.54

57(2)
5
The relevant decision is in relation to the grant of a licence or authorisation, not the Authority’s advice as to the lease provisions
3.55

Dictionary

5
The definition of “relevant chief executive” is no longer required




Part 3.16

Unit Titles Act 2001

3.56

21(1)
2a
3.57

21(2)
5
3.58

21(3)
5a
3.59

22
2a
3.60

23(1)
2
3.61

24(1)(b)
2
3.62

27(1)
2a
3.63

29(3)
2a
3.64

29(4)
2a
3.65

30(3)
2a
3.66

30(4)
2a
3.67

154(3)(b) (ii)
5a
The reference to “Ministerial” is deleted
3.68

154(4)
2a
3.69

167
2a
3.70

170(2)(c)
2a
3.71

173(3)
2a
3.72

185
5
Section 185 is no longer needed
3.73

Dictionary
5a
A definition of “development statement” is inserted
3.74

Several sections
2
Further references to “Minister” are changed to “planning and land authority”
3.75

Several sections
2
Further references to “Minister” are changed to “authority”




Part 3.17

Unit Titles Regulations 2001

3.76

8(c)
2a
3.77

9(1)
2
3.78

Several provisions
2
Further references to “Minister” are changed to “planning and land authority”




Part 3.18

Utilities (Telecomm-unications Installations) Act 2001

3.79

6
5

 

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