Law Society of the Australian Capital Territory

Law Society of the Australian Capital Territory Planning System Reform Project Submission Planning and Development Bill 2006 September 2006 Submission PLANNING

Law Society of the Australian Capital Territory Contents 1 Executive Summary 1 2 s Summary 1 2.1 Third party appeal rights 1 2.2 General drafting points 1 2.3 Cultural change 2 2.4 Missing Section 12 of the Land (Planning & Environment) Act ( Land Act ) 2 2.5 Clause 7 - non exhaustive meaning of development 2 2.6 Clause 7 - Use as a Development 2 2.7 Clause 383-385 - Preservation of existing rights 2 2.8 Clause 7(e) - Subdivision approval 2 2.9 Clause 9(2) - seal of the authority 2 2.10 Clause 12 - Directions to the Authority 2 2.11 Clause 19 - Delegation by the Authority 2 2.12 Clause 28 - Public accessibility of DA Register 2 2.13 Clause 49 - Effect of Territory Plan 3 2.14 Clause 53(1) - Development Tables 3 2.15 Clause 82(2) - Technical amendments to the Territory Plan 3 2.16 Clause 96(1) - Limiting Territory Plan variation challenges 3 2.17 Development Approvals - General 3 2.18 Clause 105 - Relevant Assessment Track 3 2.19 Section 109 - No Code track right of review 3 2.20 Clause 112(c) and 120(c) - representations received out of time 3 2.21 Clause 115 - Impact track and Schedule 4 3 2.22 Clause 122 - Impact track - time for decisions 3 2.23 Clause 124(1) - Exempt developments 3 2.24 Clause 125 - Continuing use 4 2.25 Clause 127(1) - Consideration of development proposals 4 2.26 Clause 128(2) - Form of development application 4 2.27 Clause 145(3) - Minister refers back an application 4 2.28 Clause 150 - Conditional approvals 4 2.29 Clause 170 - End of development approvals 4 2.30 Clause 179(1) - Penalties for development without approval 4 2.31 Environmental impact statements 4 2.32 Clause 202 - Meaning of concessional lease 4 2.33 Clause 206(3) - Granting leases and security provisions 4 2.34 Clause 208(1) - Restriction on direct grant authority 5 2.35 Clause 214 - Payment for leases 5 2.36 Clause 216 & 217 - Continuing use of land 5 2.37 Clause 218 - No right to use water 5 2.38 Clause 220 - Restrictions on dealings with certain leases 5 2.39 Clause 224 - Whether a lease is concessional 5 2.40 Clause 225 - The Authority may decide whether a lease is concessional 5 2.41 Clause 227 - Application of division 9.4.2 5 Submission PLANNING i

2.42 Clause 228(d) - Criteria for application to vary concessional lease 6 2.43 Clause 235 - Access to leased land from roads 6 2.44 Part 9.6 - Lease variations 6 2.45 Clause 259 - Mortgage subject to building development provision 6 2.46 Clause 260(2)(i) - Transfer of land subject to building development provision 6 2.47 Clause 269 - Power of lessee to sublet part of building 6 2.48 Clause 270 - Power of lessee to sublet part of land 6 2.49 Part 10.7 - Licences for public land 6 2.50 Clause 369 - Eligible Entity 6 2.51 Clause 370 - AAT review 6 2.52 Clause 374 - Meaning of material detriment 7 2.53 Clauses 383 to 385 - Existing rights not affected 7 2.54 Transitional position for lodged DA s 7 3 General 7 3.1 Third party appeal rights 7 3.2 General drafting points 8 3.3 Cultural change 8 3.4 Missing Section 12 of the Land (Planning & Environment) Act ( Land Act ) 8 4 Chapter 2 - Main object and important concepts 9 4.1 Clause 7 - non exhaustive meaning of development 9 4.2 Clause 7 - Use as a Development 9 4.3 Clause 383-385 - Preservation of existing rights 12 4.4 Clause 7(e) - Subdivision approval 13 5 Chapter 3 - The Planning and Land Authority and Chief Planning Executive13 5.1 Clause 9(2) - seal of the authority 13 5.2 Clause 12 - Directions to the Authority 13 5.3 Clause 19 - Delegation by the Authority 13 5.4 Clause 28 - Public accessibility of DA Register 14 6 Chapter 5 - Territory Plan 14 6.1 Clause 49 - Effect of Territory Plan 14 6.2 Clause 53(1) - Development Tables 14 6.3 Clause 82(2) - Technical amendments to the Territory Plan 15 6.4 Clause 96(1) - Limiting Territory Plan variation challenges 15 7 Chapter 7 - Development Approvals 15 7.1 General 15 7.2 Clause 105 - Relevant Assessment Track 16 7.3 Section 109 - No Code track right of review 16 7.4 Clause 112(c) and 120(c) - representations received out of time 16 7.5 Clause 115 - Impact track and Schedule 4 17 7.6 Clause 122 - Impact track - time for decisions 17 7.7 Clause 124(1) - Exempt developments 17 7.8 Clause 125 - Continuing use 18 7.9 Clause 127(1) - Consideration of development proposals 18 7.10 Clause 128(2) - Form of development application 18 Submission PLANNING ii

7.11 Clause 145(3) - Minister refers back an application 18 7.12 Clause 150 - Conditional approvals 19 7.13 Clause 170 - End of development approvals 19 7.14 Clause 179(1) - Penalties for development without approval 20 8 Chapter 8 20 8.1 Environmental impact statements 20 9 Chapter 9 - Leases & Licences 20 9.1 Clause 202 - Meaning of concessional lease 20 9.2 Clause 206(3) - Granting leases and security provisions 21 9.3 Clause 208(1) - Restriction on direct grant authority 21 9.4 Clause 214 - Payment for leases 22 9.5 Clause 216 & 217 - Continuing use of land 22 9.6 Clause 218 - No right to use water 22 9.7 Clause 220 - Restrictions on dealings with certain leases 23 9.8 Clause 224 - Whether a lease is concessional 23 9.9 Clause 225 - The Authority may decide whether a lease is concessional 24 9.10 Clause 227 - Application of division 9.4.2 24 9.11 Clause 228(d) - Criteria for application to vary concessional lease 25 9.12 Clause 235 - Access to leased land from roads 25 9.13 Part 9.6 - Lease variations 26 9.14 Clause 259 - Mortgage subject to building development provision 26 9.15 Clause 260(2)(i) - Transfer of land subject to building development provision 27 9.16 Clause 269 - Power of lessee to sublet part of building 27 9.17 Clause 270 - Power of lessee to sublet part of land 28 10 Chapter 10 - Management of public land 28 10.1 Part 10.7 - Licences for public land 28 11 Chapter 12 - Review of Decisions 28 11.1 Clause 369 - Eligible Entity 28 11.2 Clause 370 - AAT review 29 11.3 Clause 374 - Meaning of material detriment 29 12 Chapter 14 - Transitional 29 12.1 Clauses 383 to 385 - Existing rights not affected 29 12.2 Transitional position for lodged DA s 30 Submission PLANNING iii

1 Executive Summary The Society broadly welcomes many of the reforms embodied within the Draft Bill. The Society agrees with the overall intention of the Draft Bill to streamline the development approval system to make it more understandable and to impose a stricter disciplinary regime on government agencies and relevant decision makers. The reforms to the Territory Plan variation process are to be applauded as presently in many cases for even minor amendments it can take two to three years for variations to the Territory Plan to be implemented. Whilst the Society is supportive of many of the concepts introduced in the Draft Bill there are some matters in particular for which we have reservations. The concept of use as a development is a disturbing proposal and one that was not identified in the extensive public consultation material that preceded the Draft Bill. The uncertainties that this concept will introduce into the crown lease system in addition to the concept itself are an attack on the very essence of the crown lease itself. The practical difficulties in implementing such a proposal coupled with the disturbing lack of preservation of existing rights produces a result the Society cannot support. If the concept of use as a development continues and is incorporated into the final Bill then the support of the Society to the entire Bill will be called into question. The Society is also concerned that the Draft Bill seeks to diminish the extent to which third parties may appeal against development decisions. While this may be a product of the DAF model it is an area where the Society believes that present rights (and indeed community expectations) may be compromised. The Society acknowledges that many important details integral to the operation of the Draft Bill such as the changes to the Territory Plan, the regulations and relevant codes have yet to be made available. The Society is hopeful that the draft regulations will also be released in sufficient time to enable a proper scrutiny of them before they become effective. The Society welcomes the opportunity to work with the Authority in developing those instruments. 2 s Summary 2.1 Third party appeal rights The Society s general position is that third party appeal rights should be granted to anyone who is adversely effected by a development proposal and who lodges a representation within the statutory timeframe. Until the development tracks are publicly available and discussed, the Society reserves its position on whether third party appeals rights should not be available for Code track developments. 2.2 General drafting points The Society recommends that: Submission PLANNING 1

(i) (ii) all definitions where ever used in the Draft Bill should be located in the Dictionary at the end of the Draft Bill; examples used in the body of the Draft Bill are to be encouraged, however, examples should be relevant and they should be correct. 2.3 Cultural change The Society recommends that the Authority continue its progress on cultural and structural reforms. 2.4 Missing Section 12 of the Land (Planning & Environment) Act ( Land Act ) Section 12 of the Land Act should be incorporated in the Draft Bill. 2.5 Clause 7 - non exhaustive meaning of development The Society recommends that the definition of development be modified to be an exhaustive definition. 2.6 Clause 7 - Use as a Development The entire notion of use as a development should be deleted from the Draft Bill as this is a seriously unworkable concept. 2.7 Clause 383-385 - Preservation of existing rights These provisions should be deleted along with the entire notion in clause 7 of use as a development. 2.8 Clause 7(e) - Subdivision approval It should be made clear that a sublease under clause 269 or 270 is not a subdivision for the purposes of clause 7. 2.9 Clause 9(2) - seal of the authority Consideration should be given as to why the Authority should have a seal. 2.10 Clause 12 - Directions to the Authority Any direction given to the Authority must be consistent with the Territory Plan and not unlawful. 2.11 Clause 19 - Delegation by the Authority It should be made clear that the Authority is able to grant a delegation to the LDA on an irrevocable basis. 2.12 Clause 28 - Public accessibility of DA Register The public register and copies of development applications should be made available for access on the internet. Submission PLANNING 2

2.13 Clause 49 - Effect of Territory Plan It should be made clear that the Territory Plan binds both the LDA and the Chief Planning Executive. 2.14 Clause 53(1) - Development Tables This provision should be redrafted. 2.15 Clause 82(2) - Technical amendments to the Territory Plan This provision should be re-worded to make clear that the Authority has the ability to implement technical amendments to the Territory Plan as notifiable instruments if the pre-conditions in subclause (1) are satisfied. 2.16 Clause 96(1) - Limiting Territory Plan variation challenges This clause should be deleted. 2.17 Development Approvals - General Full details of the applicable assessment tracks should be made public as soon as possible and available for public comment and involvement. 2.18 Clause 105 - Relevant Assessment Track The decision of the Authority as to which assessment track applies to a development proposal should be a reviewable decision. 2.19 Section 109 - No Code track right of review Applicant s should be able to seek review of code assessment track decisions. 2.20 Clause 112(c) and 120(c) - representations received out of time It should be made clear whether or not a representation received within the permitted time is to be taken into account by the decision maker. 2.21 Clause 115 - Impact track and Schedule 4 The particular items in schedule 4 triggering impact track assessment should be closely reviewed to determine whether, in the interests of certainty, they are too broad and can be refined. 2.22 Clause 122 - Impact track - time for decisions The word applies should be deleted. 2.23 Clause 124(1) - Exempt developments The provision should read: If a development proposal is exempt from requiring a development approval, the proposal may proceed without a development application or a development approval. Submission PLANNING 3

2.24 Clause 125 - Continuing use This clause should be deleted. 2.25 Clause 127(1) - Consideration of development proposals The Authority should be obliged to consider a development proposal contained within a development application that is in a lodgeable form. 2.26 Clause 128(2) - Form of development application It should be made clear whether or not it is possible to lodge a development application despite the fact that the crown lease may not have issued where the consent of the Custodian or the Authority is obtained. 2.27 Clause 145(3) - Minister refers back an application It should be made clear what are the relevant time frames within which the Authority is to make a decision that has been referred back from the Minister. 2.28 Clause 150 - Conditional approvals The Authority should be given the power to note on the Land Titles register the existence of encroachment licences and restrictions on transfer that are included in development conditions. 2.29 Clause 170 - End of development approvals Subject to our comments regarding the inclusion of use as a development, it should be made clear that the new use or changed use continue to be approved beyond the commencement of the use. 2.30 Clause 179(1) - Penalties for development without approval The level of fines should be reconsidered to be reset at reasonable levels. 2.31 Environmental impact statements Measures should be put in place to ensure that the scope of an EIS is appropriate for a proposal and that there is a consistent approach in assessing impact proposals. 2.32 Clause 202 - Meaning of concessional lease There needs to be a mechanism under which the Territory is able to deem that market value has been paid in respect of a particular lease to prevent the risk of challenges by third parties. 2.33 Clause 206(3) - Granting leases and security provisions There should be clarity as to the particular obligations the Authority is seeking to require performance securities. There should also be parameters placed around the extent of any security to at least be a reasonable amount having regard to the nature of the obligation to be performed. Submission PLANNING 4

2.34 Clause 208(1) - Restriction on direct grant authority Consideration should be given to authorising the Authority to grant leases for minor parcels of land without Minister approval as long as they are consistent with prescribed criteria. 2.35 Clause 214 - Payment for leases It should be made clear that clause 214(1) does not apply to concessional leases. Consideration other than by cash should be contemplated. It should be made clear that a contravention of this provision does not invalidate a crown lease. 2.36 Clause 216 & 217 - Continuing use of land These provisions should be deleted. 2.37 Clause 218 - No right to use water It should be made clear whether it is the intention of the Authority to prejudice pre-existing water rights contained in pre-act leases. To acquire such rights other than with compensation on just terms is objectionable to the Society. 2.38 Clause 220 - Restrictions on dealings with certain leases The restrictions contemplated should be appropriate for the particular circumstances and the Authority should be empowered to consent to certain dealings in a flexible way. 2.39 Clause 224 - Whether a lease is concessional The Society recommends that lease conveyancing enquiries confirm whether or not a crown lease is concessional. The inclusion of a simple yes/no question, "Is the crown lease a concessional crown lease?" would provide certainty in conveyancing enquiries. This would also be a more efficient means of confirming the status of crown leases than lodging a separate enquiry with the Authority. 2.40 Clause 225 - The Authority may decide whether a lease is concessional The Authority should not be able to on its own initiative decide whether a lease is concessional without notifying the crown lessee that it is so considering this position and enabling the crown lessee to provide its own comments in relation to the proposal before a decision is made. Any such decision should be reviewable by the Administrative Appeals Tribunal. 2.41 Clause 227 - Application of division 9.4.2 It should be made clear that division 9.4.2 is only intended to apply to development applications seeking to remove the concessional status of a concessional lease. Submission PLANNING 5

2.42 Clause 228(d) - Criteria for application to vary concessional lease It should be made clear that if the Territory decides to buy back a concessional lease then the principles contained in the Lands Acquisition Act should apply. 2.43 Clause 235 - Access to leased land from roads It should be made clear that the LDA may not cause to be granted or enter into agreements for the grant of crown leases unless it procures access to the land. 2.44 Part 9.6 - Lease variations Any new methods for determining change of use charge should be transparent, simple and fair to all parties. 2.45 Clause 259 - Mortgage subject to building development provision This provision should be deleted completely and the Authority should rely on the multitude of other remedies available to it to ensure compliance with a building development provision of the crown lease. 2.46 Clause 260(2)(i) - Transfer of land subject to building development provision The Authority consider where the reference to the word cannot is appropriate or should be replaced with a more flexible concept of a person being impeded from complying with the building development provision for a justifiable personal or financial reason. 2.47 Clause 269 - Power of lessee to sublet part of building It should be made clear that it is possible to lease an entire building. 2.48 Clause 270 - Power of lessee to sublet part of land There should be a definition of what is intended by principal use of the land. 2.49 Part 10.7 - Licences for public land There should be an express power included in the Draft Bill which allows the Authority to vary or extend the term of a licence for public land. 2.50 Clause 369 - Eligible Entity The definition should be completed. 2.51 Clause 370 - AAT review References to Eligible Person should become Eligible Entity. Submission PLANNING 6

2.52 Clause 374 - Meaning of material detriment The concept of material detriment should be replaced with a general right for a third party to seek review of a decision as long as they are adversely affected by the decision. The reference to "the land" in clause 374(1) should be changed to "their land", to clarify that the relevant land is the land owned by the relevant entity. 2.53 Clauses 383 to 385 - Existing rights not affected These provisions should be deleted along with the entire notion of use as a development. 2.54 Transitional position for lodged DA s The Land Act should continue to apply to development applications lodged before commencement of the new Act. 3 General 3.1 Third party appeal rights The Society is not supportive of that aspect of the Development Assessment Forum model which limits the ability of third parties to appeal against decisions that impact on them directly or indirectly. The Society believes that it is an important right of members of the Canberra community who believe they will be adversely effected by a proposed development to be able to do more than merely lodge an objection/representation regarding the proposed development. Those who are so affected should also be afforded the opportunity to seek an independent review of that decision by the Administrative Appeals Tribunal. The Society understands that the assessment track system (particularly for Code assessment track developments) is predicated on different appeal rights for different forms of development. The Society reserves its position on whether third party appeal rights should be available for Code track developments until after the proposed Code track developments are released for public comment. If the types of developments referred to will be such as not to unfairly impact on third parties rights then the Society may be prepared to accept a review right limitation in those circumstances. The Society reminds the Authority that the ability to seek independent review is regarded as an essential element of any administrative decision making process. It ensures public confidence that all relevant matters are properly considered and objectively assessed. Submission PLANNING 7

The Society s general position is that third party appeal rights should be granted to anyone who is adversely effected by a development proposal and who lodges a representation within the statutory timeframe. Until the development tracks are publicly available and discussed, the Society reserves its position on whether third party appeals rights should not be available for Code track developments. 3.2 General drafting points The Society suggests consideration be given to style improvements that will enhance the readability and understanding of the Draft Bill. The Society recommends that: (i) (ii) all definitions where ever used in the Draft Bill should be located in the Dictionary at the end of the Draft Bill; examples used in the body of the Draft Bill are to be encouraged, however, examples should be relevant and they should be correct. 3.3 Cultural change The Society notes that it is one thing to focus on the legislative basis of our planning system and it is another to implement the reforms proposed within the Draft Bill. To this end the Society recognises that the Authority has already undertaken significant structural change which is leading to a cultural shift within the Authority. The Authority is to be applauded for progressing its efforts in modernising itself and to reforming its culture to be more service and results orientated. The Society recommends that the Authority continue its progress on cultural and structural reforms. 3.4 Missing Section 12 of the Land (Planning & Environment) Act ( Land Act ) The Draft Bill does not appear to contain section 12 of the Land Act. This is obviously a very important right that protects existing uses that predated the Territory Plan. Submission PLANNING 8

Section 12 of the Land Act should be incorporated in the Draft Bill. 4 Chapter 2 - Main object and important concepts 4.1 Clause 7 - non exhaustive meaning of development As presently drafted the definition of development is a non exhaustive definition as the definition refers to the word includes. This opens up the possibility that a development could be anything beyond the matters contemplated in subclause -(h). As presently worded the definition is too uncertain. The Society recommends that the definition of development be modified to be an exhaustive definition. 4.2 Clause 7 - Use as a Development Presently the Draft Bill contemplates that beginning a use or changing a use, adding a use or stopping a use and substituting another use each are developments in their own right requiring an approval. There are serious ramifications in implementing this new concept bearing in mind that the consequences of conducting such a development without an approval could attract a fine of up to $1.25 million. The proposed clauses 7(c) and (d) directly contradict the findings of the Report into the Administration of the ACT Leasehold ("Stein Report") dated 15 November 1995. This report was the product of an extensive inquiry into the ACT crown leasehold system, which was chaired by Justice Paul Stein of the NSW Land and Environment Court. The terms of reference for the inquiry included: "examine and report on the administration of the ACT leasehold system since self government including: (e) the extent to which the original purpose of the leasehold system is relevant; (g) any other related matters concerning the administration of the ACT leasehold system as may appear to require examination". Submission PLANNING 9

At paragraph 13.28, under the heading "Ensuring orderly planning by lease purpose clauses", the Stein Report states: " for the leasehold system to deliver orderly planning in the ACT, lease purpose clauses need to be clear and unambiguous, rigorously enforced, reviewed and amended when appropriate to encourage desired redevelopment and not overridden by a statutory zoning plan". If the proposed clauses 7(c) and (d) are retained, a crown lease will no longer be a definitive statement of the permitted land uses. Rather, it will be subject to the development application process and the Territory Plan. That is, a statutory zoning plan will take precedence over the terms of crown leases. The Society strongly believes that the concept embodied in the proposed clauses 7(c) and (d) is an attack on the very heart of the crown lease system. It is a fundamental premise of the crown lease that the purpose clause defines the limit of the uses that are permitted under the crown lease. A crown lease is essentially a contract between the Territory and the Crown Lessee, whereby the Crown Lessee provides consideration for the bundle of rights embodied in the Crown Lease. This will no longer be the case. The Society believes the introduction of this new concept will undermine the confidence of the community and investors in the crown leasehold system. No longer will a crown lessee be able to rely on the imbedded rights within their crown lease. This, then, raises the question as to which rights the Crown Lessee has provided consideration for. The proposal contained in the Draft Bill that a paid use in a crown lease is no longer a right is unsettling. It has always been understood that crown lease rights are subject to design and siting considerations, but to propose a system where the right may not be able to be used at all appears unfair. If the Authority is concerned that a right to use land in a particular way should not be granted then it should exclude that use from the crown lease in the first place. It is not sufficient to claim that other jurisdictions may have similar notions. The essential difference with these jurisdictions is that their title structure is not underpinned by crown leases like here in the ACT. This is a dramatic difference. If the Government were to seriously consider this option then it should also consider abolishing the crown lease and reverting to freehold grants in the ACT (an option that is presently constitutionally unavailable). Unlike other jurisdictions, the Territory does not have a register of historical land uses. Therefore, it is impossible to confirm which uses have previously, or are currently being, undertaken on any given parcel of Territory land. Accordingly, the uses which the Crown Lessee has as of right, and those which will require further approval, will be unclear. This will create uncertainty in land valuation in the Submission PLANNING 10

Territory and will act as a strong disincentive for investment in the Territory. As presently drafted, there is no preservation of a use that has already commenced and has been approved but which may cease to be continuously used later. The absence of such a provision is a serious matter that requires rectification. It is counter intuitive that on the one hand a crown lease is issued with a purpose clause which specifies the purpose for which the crown lease may be used, yet on the other hand the crown lessee is unable to carry out those uses without obtaining a development approval from the Authority. This is despite the fact that the crown lessee has paid for the right to use those uses. The overlay of the use definitions in clause 7, along with the attempt to preserve continuing uses in clause 125, subject to Draft Regulation 4 and the conditional provisions in clauses 383 to 385 all make for a very confusing cocktail of rules regarding permission to use the purpose already contained with the crown lease. The crown leasehold system is already confusing enough, particularly for investors outside the ACT. Clause 125 contemplates that a continuation of use that has been approved is preserved, however, there is no analysis of what continuation of use is. If for example a use is stopped for a day, for a month or a year, it is unclear whether this is a continuing use. In its ordinary meaning one would think continuation of use means that the use perpetuates without ending. Uncertainties will be created for crown lessees, their tenants, financiers and those otherwise dealing with property as to what uses have been approved, what uses are continuing and what uses have ended. A tenant who chooses to close shop or who goes into liquidation presents a dilemma for the landlord and potentially a loss of a previously approved use. Financiers and valuers will be particularly unsure about the way in which to value crown leases when the crown lease is not determinative of value but instead only suggestive of what purpose may be approved by the Authority. It would appear that a separate development approval is required before a value can be determined. It follows that a crown lease without a development approval activating specified crown lease uses may have no value. This cannot be what was intended. The ability for crown lessees to switch uses within the defined purpose clause and within their permitted GFA spectrum has been a well understood and acknowledged right and practice. The proposed Draft Bill threatens this basic right and practice. The Society presumes that the Authority is not seeking to impose an additional change of use charge for approved uses despite the fact that the crown lessee has paid a full and proper price from the initial grant Submission PLANNING 11

of the crown lease. As presently drafted the change of use charge provisions are unclear on settling this issue. The whole conveyancing system will need to be revised as buyers and sellers come to grips with the consequences to them and the comforts/warranties and guarantees they will need to ensure that the requisite approvals have been obtained. It is quite possible that every conveyance of land in the ACT will require a certificate from the Authority confirming which uses have been approved and then an audit done of which uses are existing and correlate with the approved uses (apart from anything that may well have been in the crown lease). Trying to explain to the crown lessee that the uses for which the crown lessee has paid for may not be permitted will be a serious matter of concern for all crown lessees or potential crown lessees. The impact that this will have on business confidence and investment in Canberra will be severe. The Authority believes that the use as a development concept is justifiable on the basis that it simplifies the compliance process for the Authority. Whether this is true or not is debatable, what will be for certain will be the uncertainty and the detriment caused to the crown lessees, valuers, financiers and others will far exceed any efficiencies gains that might be made in administration within the Authority. The entire notion of use as a development should be deleted from the Draft Bill as this is a seriously unworkable concept. 4.3 Clause 383-385 - Preservation of existing rights The Society is deeply concerned regarding the effect of these provisions. The intent would appear to be that anyone with a crown lease granted prior to the commencement of the Act would have their crown lease rights preserved and not be affected for the need for a use approval under clause 7. The reality, is that it is merely presumed that the uses referred to in a pre Act lease are approved and that if there is contrary evidence provided then the use is not taken to be approved. This concept will create havoc within the community as it opens the door for third parties to argue that a neighbour has not used all their uses under their crown lease and therefore the outstanding uses have not been approved. This would appear to be an acquisition of existing rights other than on just terms and therefore subject the Authority and the Territory to community wide claims for compensation. Submission PLANNING 12

These provisions should be deleted along with the entire notion in clause 7 of use as a development. 4.4 Clause 7(e) - Subdivision approval s This provision regards any subdivision as a development requiring approval. It needs to be made clear that subletting of land under clause 269 or 270 does not amount to a subdivision for the purposes of clause 7. It should be made clear that a sublease under clause 269 or 270 is not a subdivision for the purposes of clause 7. 5 Chapter 3 - The Planning and Land Authority and Chief Planning Executive 5.1 Clause 9(2) - seal of the authority This provision requires the Authority to have a seal. It is unclear why a seal is necessary, particularly as the Authority is an individual. Consideration should be given as to why the Authority should have a seal. 5.2 Clause 12 - Directions to the Authority This provision requires the Authority to comply with any direction given to the Authority. As a minimum any direction given to the Authority must be consistent with the Territory Plan and otherwise lawful. Any direction given to the Authority must be consistent with the Territory Plan and not unlawful. 5.3 Clause 19 - Delegation by the Authority Under this provision the Authority is able to delegate the function of granting leases on behalf of the Executive to the LDA. The Society Submission PLANNING 13

has no problem with the Authority delegating part of its leasing function to the LDA. However, recent joint venture arrangements involving the LDA have drawn into sharp focus the limitations on the delegation authority of the LDA. When the LDA enters into long term joint venture agreements where the co-venturer is relying on the ability of the LDA to grant leases over a long period of time (ie 5-10 years) there is no assurance that the delegation will continue as the Authority is able to revoke delegations any time, this is notwithstanding that the LDA may have entered into commitments and received significant sums of money in the meantime. It should be made clear that the Authority is able to grant a delegation to the LDA on an irrevocable basis. 5.4 Clause 28 - Public accessibility of DA Register The Authority is obliged to allow people to inspect the public register. It would assist the public accessibility of material on the public register if the public register were accessible on the internet (in a way not too dissimilar to the concept behind the Land Titles Register). The public register and copies of development applications should be made available for access on the internet. 6 Chapter 5 - Territory Plan 6.1 Clause 49 - Effect of Territory Plan This provision provides that the Territory, the Executive, a Minister or a Territory Authority must not do any act that is inconsistent with the Territory Plan. It is not clear whether this provision binds both the LDA and the Chief Planning Executive. It should be made clear that the Territory Plan binds both the LDA and the Chief Planning Executive. 6.2 Clause 53(1) - Development Tables This provision may need to be redrafted so that it provides: Submission PLANNING 14

the development proposals that are exempt from requiring development approval and the developments that are prohibited; This provision should be redrafted. 6.3 Clause 82(2) - Technical amendments to the Territory Plan This provision contemplates that if the Authority is satisfied that a draft plan variation would be a technical amendment then it is able to vary the Territory Plan through a notifiable instrument. As presently worded it appears unclear that if the preconditions in subclause (1) are satisfied then the Authority is able to vary the Territory Plan by way of a technical amendment that itself is a notifiable instrument. This provision should be re-worded to make clear that the Authority has the ability to implement technical amendments to the Territory Plan as notifiable instruments if the pre-conditions in subclause (1) are satisfied. 6.4 Clause 96(1) - Limiting Territory Plan variation challenges This provision is an attempt to prevent any challenges to a Territory Plan variation which were not commenced within three months after the variation came into effect. This seems an extraordinary provision to include on the basis that it justifies a provision within the Territory Plan as being valid even though it may have been unlawfully commenced or unlawfully came into operation. If a provision in a Territory Plan is unlawful then one would assume that it is unlawful whether it was objected to within one month, three months, six months or 3 years after it was enacted. This clause should be deleted. 7 Chapter 7 - Development Approvals 7.1 General The Draft Bill formulates in Chapter 7 the assessment track system. It is very difficult to understand the exact way in which the assessment tracks will work without also understanding the extent of Submission PLANNING 15

the particular nature of the tracks themselves. Without the public release of the proposals that are subject to code assessment, merit assessment and impact assessment, it is very difficult to understand the complete impact of the assessment track system. It is acknowledged that the whole reform project is an enormous task and the Authority has decided to release the relevant legislation and instruments in stages. Full details of the applicable assessment tracks should be made public as soon as possible and available for public comment and involvement. 7.2 Clause 105 - Relevant Assessment Track Which assessment track applies to a particular development proposal becomes critical in determining the rights of any applicant and the particular assessment route and provisions of the Act that will apply. Because the repercussions on the applicant are significant the potential impact of the decision of the Authority as to which track applies should be a reviewable decision that the applicant is able to seek independent review through the Administrative Appeals Tribunal. The decision of the Authority as to which assessment track applies to a development proposal should be a reviewable decision. 7.3 Section 109 - No Code track right of review As presently drafted the applicant to a code assessment track development proposal is not able to seek review of a decision regarding a code track development. The Society supports the ability of the applicant to seek review of any decision of the Authority in relation to the applicant s development proposal. Applicant s should be able to seek review of code assessment track decisions. 7.4 Clause 112(c) and 120(c) - representations received out of time As presently worded it is unclear as to whether representation received by the Authority outside of the permitted consultation period is able to be taken into consideration when making a final decision. Submission PLANNING 16

It should be made clear whether or not a representation received within the permitted time is to be taken into account by the decision maker. 7.5 Clause 115 - Impact track and Schedule 4 It is proposed that the various development proposals envisaged in Schedule 4 will be subject to the impact track for assessment. The Society notes that the Authority contemplates that there will only be the few exceptional developments that will be subjected to the far broader impact track assessment track. The development proposals in Schedule 4 are very broad and may lead to confusion and arguments of interpretation as to whether a particular proposal actually triggers their application. For instance item 9 part 4.3 refers to a development likely to result in substantial emissions of greenhouse gases. As all buildings will generate greenhouse gases it is unclear whether the erection of all buildings will trigger this item. Further, the suggestion that a surrender and regrant of a concessional lease should trigger an impact trade assessment with a requirement for an EIS seems a little over the top. The particular items in schedule 4 triggering impact track assessment should be closely reviewed to determine whether, in the interests of certainty, they are too broad and can be refined. 7.6 Clause 122 - Impact track - time for decisions The word applies appears to be misplaced. The word applies should be deleted. 7.7 Clause 124(1) - Exempt developments This provision as presently drafted is hard to understand. The provision should read: Submission PLANNING 17

If a development proposal is exempt from requiring a development approval, the proposal may proceed without a development application or a development approval. 7.8 Clause 125 - Continuing use We refer to our comments regarding clause 7 in point 4.2 above. This clause should be deleted. 7.9 Clause 127(1) - Consideration of development proposals As presently drafted the Authority is not obliged to consider a development proposal. If a development proposal is in a form that complies with the legislative requirements then the Authority should be obliged to consider that proposal. The Authority should be obliged to consider a development proposal contained within a development application that is in a lodgeable form. 7.10 Clause 128(2) - Form of development application It is unclear whether it is possible to lodge a development application with the consent of the Custodian or the Authority where the crown lease has not yet been issued. Presumably if the Custodian or the Authority have approved the application this should not matter. It would no doubt save time rather than waiting till the crown lease has been issued. It should be made clear whether or not it is possible to lodge a development application despite the fact that the crown lease may not have issued where the consent of the Custodian or the Authority is obtained. 7.11 Clause 145(3) - Minister refers back an application The Minister is given the power (as is the case now), where the Minister has satisfied that he/she should not consider an application, to refer it back to the Authority. It is unclear what are the relevant Submission PLANNING 18

time frames within which the Authority is to decide an application that has been referred back from the Minister. It should be made clear what are the relevant time frames within which the Authority is to make a decision that has been referred back from the Minister. 7.12 Clause 150 - Conditional approvals Occasionally development approvals contain conditions which are intended to bind future owners of the property the subject of the approval. For example, where an approval is conditional upon the crown lessee holding a licence in respect of an encroachment, a condition of the transfer of the property is that future owners enter into a similar licence arrangement with the Territory. Given these restrictions on transfer are located in the approval conditions, and not on title, a purchaser of the property may not be aware of such a condition at the time of sale. The Authority should be given the power to note on the Land Titles register the existence of encroachment licences and restrictions on transfer that are included in development conditions. 7.13 Clause 170 - End of development approvals Where a development approval is granted in relation to beginning a new use or changing a use, which does not require a lease variation, the approval ends if, amongst other reasons, the use is begun in accordance with the approval. It is not clear what happens to that new use or changed use after the approval ends. The approval should continue beyond the commencement of the use. Presumably it is intended that the approved use would be regarded as a continuing use. Despite our earlier comments, if the use as a development were to continue then this ambiguity should be rectified. Subject to our comments regarding the inclusion of use as a development, it should be made clear that the new use or changed use continue to be approved beyond the commencement of the use. Submission PLANNING 19

7.14 Clause 179(1) - Penalties for development without approval The penalties for undertaking a development without an approval have been massively increased for an individual and a corporation. In the case of a corporation, the penalties have increased by 5000%. This seems to be harsh particularly given the reference to penalty units and the level of fines imposed by the other subclauses. The level of fines should be reconsidered to be reset at reasonable levels. 8 Chapter 8 8.1 Environmental impact statements The Authority needs to be careful to ensure that there is clarity as to what types of EIS are required and the extent of their scope. As presently contemplated different EIS will be required depending on the type of activity proposed. This seems sensible to match an EIS requirements for a particular proposal, however, care needs to be taken to ensure that the requirements are clear and consistent between development proposals. The Authority should be mindful not to subject applicants to very broad EIS requirements just because it can. Measures should be put in place to ensure that the scope of an EIS is appropriate for a proposal and that there is a consistent approach in assessing impact proposals. 9 Chapter 9 - Leases & Licences 9.1 Clause 202 - Meaning of concessional lease A concessional lease will include a lease granted for less than full market value. The opportunity may be open to objectors or competitors to claim that a third party s crown lease may have been issued for less than what they regard as market value. If a third party can establish that another party s crown lease has been issued for less than market value then the crown lessee in question may well be prejudiced by having their lease regarded as a concessional lease. Submission PLANNING 20

There needs to be a mechanism under which the Territory is able to deem that market value has been paid in respect of a particular lease to prevent the risk of challenges by third parties. 9.2 Clause 206(3) - Granting leases and security provisions This clause provides that a lease may include a requirement that the lessee give security for the performance of any of the lessee s obligations under the lease. Whilst securities provided for uncompleted works are not common place it is unclear whether the Authority contemplates that security will be sought to be provided from crown lessees seeking performance of other crown lease obligations. These obligations include the obligation to use the crown lease for its permitted use, to obtain the requisite building approvals, to have a minimum GFA and a minimum amount of car parking. If the Authority is seeking to broaden the circumstances under which securities would be required to be provided then this would be a concern for the Society. Further, any security should be limited to the extent it is required to guarantee the performance of the obligation which it secures. Anything beyond a reasonable amount in this context would be regarded as a penalty. There should be clarity as to the particular obligations the Authority is seeking to require performance securities. There should also be parameters placed around the extent of any security to at least be a reasonable amount having regard to the nature of the obligation to be performed. 9.3 Clause 208(1) - Restriction on direct grant authority In subclause the Authority is authorised to grant crown leases for minor parcels of land (which are common place in the Territory) with the approval of the Minister, as opposed to the present system which requires Cabinet approval. Until the grant criteria to be prescribed by regulation is revealed the Society is unable to completely comment in relation to this provision, however, the Society supports the ability of the Authority to be able to grant leases for small parcels of land or land that may not necessarily be significant in area but immediately adjacent to a lessee s land. Submission PLANNING 21

Any improvement to the direct grant system is welcomed where it streamlines the decision making process. Consideration should be given to authorising the Authority to grant leases for minor parcels of land without Minister approval as long as they are consistent with prescribed criteria. 9.4 Clause 214 - Payment for leases Under this provision the Authority may not grant a lease other than for market value. It is unclear how this provision applies in relation to concessional leases. Consideration should be given as to whether it is acceptable to pay for the grant of a crown lease other than by cash, for example through the provision of additional works or public infrastructure. It is unclear what the consequences are if the Authority does grant a lease for less than market value. A crown lessee should not be exposed to the possibility that their crown lease is invalid despite the fact that they believed that they had paid full market value. It should be made clear that clause 214(1) does not apply to concessional leases. Consideration other than by cash should be contemplated. It should be made clear that a contravention of this provision does not invalidate a crown lease. 9.5 Clause 216 & 217 - Continuing use of land Refer to our comments in point 4.2 above. These provisions should be deleted. 9.6 Clause 218 - No right to use water This clause provides that a lease granted under the Act does not give a right to use or control water under the land comprised in the lease. By virtue of clause 394 a pre-act lease would be bound by this Submission PLANNING 22