Inquiry into Engagement with Development Application Processes in the ACT.

Standing Committee on Planning and Urban Renewal

1. The Ginninderra Falls Association was formed in 2011 arising from concerns to protect the Murrumbidgee and Ginninderra gorges and falls area, covering both landscape and biodiversity.  The land bounded by these waterways is now proposed for major greenfields urban development which presents issues with the interface between the urban area and the natural environment.  We, therefore, welcome the opportunity to comment on ACT development application processes and wish to focus on the second and third Terms of Reference.

2) The accessibility and effectiveness of Development Application processes, including:

a) the information provided in relation to the requirements for Development Applications;
b) the current development assessment track system;
c) the Development Application e-lodgement and tracking system, e-Development;
d) processing times for Development Applications;
e) retrospective Development Applications;
f) reconsideration and appeal processes; and
g) Heritage, Tree Protection and Environmental assessments.

2. The discretion to determine which track a DA should be assessed under should be applied only to one stage of a development at a time, i.e. to each independent development application, and after careful examination of possible adverse effects to the environment, including biodiversity, natural habitats and land (erosion/contamination etc.).  The current redevelopment of part of the Belconnen golf course for the Ginninderra Estate, off Stockdill Drive (previously part of Section 99 Holt, now sections 119-131 Holt), appears to have been approved without consideration of the possible effects on the Little Eagle nesting nearby or other wildlife.  Investigating such possibilities should be part of the normal assessment process to avoid negative effects once building works commence. 

3. The Concept Plan for this development dated 26 Feb 2016 specifies that one purpose is to:

• incorporate principles of contemporary best practice for energy efficiency, water conservation, solar access and ecological sustainability.

Rule 41 of the Estate Development Code (EDC) provides that:

This rule applies to land affected by a plan for the protection of matters of national environmental significance (NES plan) approved under the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth). Development is not inconsistent with the relevant NES plan.

Table 4 of the EDC lists habitat sites requiring low intensity management including:

The bushland setting for Canberra Remnant grassland or woodland sites important for nature conservation purposes. May form part of a regional ecosystem, provide the food source for migratory species or contain endangered plant or animal species or be used for connectivity and be subject to conservation activities and monitoring in accord with Action Plans for their conservation prepared under provisions of the Nature Conservation Act 1980.

There is very clear intent for these issues to be considered; the major difficulty is effective implementation in the face of inadequate knowledge of the natural environment and the need for research into local biodiversity.

4. Environmental opinions provided by consultants hired by the applicant should not be accepted for DA assessment due to the possibility of a conflict of interest.  Such opinions supporting DAs should be totally independent and seen to be independent.  They should be sought either directly by the ACT Government with costs recovered from the applicant or through an independent agency established for that purpose under strict operating guidelines. 

5. Reconsideration of decisions on DAs is not available to the ordinary citizen, only to DA applicants.  The only recourse for the ordinary citizen is to the ACT Civil and Administrative Appeals Tribunal (ACAT) which is formal and requires the hiring of legal support, including an instructing solicitor and barrister.  This is an expense generally in the range of $30,000 which is excessive for anyone other than developers and government agencies.  It is also a formidable process for the ordinary person to deal with.

6. Environmental assessments should be mandatory for any greenfields development or any development at the interface between the urban area and the natural environment.  These should be based on independent research by experts who are not involved with the applicant in any way.

3) Development Application compliance assessment and enforcement measures.

7. Section 94A of the Environment Protection Act 1997 (below) provides that the Planning and Development Act 2007 applies to an EIS attached to a DA.
8. The Planning Minister should not have the power to call in a decision that the ACAT has determined was incorrectly lodged in the Merit Track and should have been lodged in the Impact Track requiring an Environmental Impact Statement (EIS). 
9. The Minister should not have the power to approve an application for exemption from providing an EIS for more than one DA at a time.

Environment Protection Act 1977

94 Environmental impact statements and inquiries

(1) This section applies in relation to an application for an environmental authorisation in relation to an activity.

(2) At the authority’s request, or on the Minister’s own initiative, the Minister may—

(a) direct that an EIS be prepared in relation to the possible environmental impact of the activity; and

(b) after the EIS is given to the Minister—establish a panel to conduct an inquiry into the activity.

(3) For subsection (2)—

(a) the Minister must not direct that an EIS be prepared or establish a panel unless satisfied that the activity is not the subject of a development application under the Planning and Development Act 2007; and

(b) the authority must not make a request unless the authority—

(i) is satisfied that the activity is not the subject of a development application under the Planning and Development Act 2007; and

(ii) has reasonable grounds for believing the activity has the potential to cause serious or material environmental harm.

(4) The Minister must give the authority a copy of—

(a) any EIS prepared as directed under subsection (2) (a); and

(b) the report of any inquiry panel established under subsection (2) (b).

94A Application of Planning and Development Act, pt 8.2 and pt 8.3

(1) The Planning and Development Act 2007, part 8.2 applies to an EIS prepared in accordance with a direction under section 94 (2) (a) as if—

(a) a reference to a development proposal were a reference to an activity; and

(b) a reference to the Minister were a reference to the Minister administering section 94; and

(c) a reference to the planning and land authority were a reference to the authority; and

(d) any other necessary changes, and any change prescribed by regulation, were made.

 (2) The Planning and Development Act 2007, part 8.3 applies to an inquiry panel established under section 94 (2) (b) as if—

(a) a reference to the Minister were a reference to the Minister administering section 94; and

(b) a reference to the planning and land authority were a reference to the authority; and

(c) any other necessary changes, and any change prescribed by regulation, were made.

Planning and Development Act 2007

Part 8.2 Environmental impact statements Division 8.2.1 EIS exemptions

211H EIS exemption—decision

(1) This section applies if the proponent of a development proposal gives the Minister a revised EIS exemption application under section 211G (2) (c).

(2) The Minister may grant an EIS exemption for the proposal if satisfied that the expected environmental impact of the development proposal has already been sufficiently addressed by a recent study, whether or not the recent study relates to the particular development proposal.

Examples—recent study that may sufficiently address the expected environmental impact of a development proposal

• a report about the ecological value of an area
• an environmental impact statement under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), pt 8 (Assessing impacts of controlled actions)
• an endorsed policy, plan or program under the Environment Protection and Biodiversity Conservation Act 1999 (Cwlth), pt 10 (Strategic assessments)

Note       An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) In deciding whether the environmental impact of the development proposal has been sufficiently addressed by the recent study, the Minister must consider—

(a) whether the recent study was conducted by an appropriately qualified person with relevant expertise and experience in relation to the environmental values of the land in the proposal; and

(b) if the recent study does not relate directly to the proposal— whether there is sufficient detail to allow assessment of the environmental impacts likely to occur if the proposal proceeds; and

(c) whether the part of the recent study relevant to the proposal required public consultation through a statutory process or as part of a government policy development; and

Example

the public consultation process in a territory plan variation under pt 5.3

(d) if the recent study is more than 18 months old—whether the Minister is satisfied that the information in the study is current; and

(e) any submissions received during the consultation period for the EIS exemption application.

(4) An EIS exemption may be conditional.

(5) An EIS exemption is a notifiable instrument.

Note                A notifiable instrument must be notified under the Legislation Act.

(6) The Minister must put an electronic link to the EIS exemption on the authority website.

Note                Authority website—see the dictionary.