General information. This page describes the ACT’s planning law in general terms. It is not legal or planning advice for any project. ACT Planning’s development application pages and the Planning Act 2023 are the official places to check, and ACAT explains its own reviews.
A development application, or DA, is the formal request for permission to build a new development, and in the ACT it is assessed against legislation and planning policy. It is also the community’s chance to have a say: every DA is publicly notified, and comments made in time must be considered.
Does the work need a DA?
The Act sorts development into three main types. Assessable development needs development approval; prohibited development is unlawful unless approval is allowed under a particular division of the Act; exempt development needs no approval at all.
Whether a project is exempt turns on the Planning (Exempt Development) Regulation 2023. Anyone can check a project against it, and a building certifier can give a formal exemption notice. ACT Planning lists general criteria that every exempt project must meet, and then criteria specific to the kind of project, set out in Schedule 1 of the Regulation. Among the general criteria, an exempt project must:
- stay out of an easement, existing or proposed, and out of any space that gives access to or protects utility infrastructure, unless the entity responsible (a utility company, for example) has given written permission
- not breach the Urban Forest Act 2023 or the Heritage Act 2004
- not take the number of dwellings on the block to two or more.
The DA Gateway Team gives advice but does not approve exemptions; in ACT Planning’s words, “only a building certifier can ensure plans and work are legally completed”. Where a project falls just short of some development controls, a DA exemption declaration may be possible. A DA on unleased land, such as a nature strip or verge, brings other approvals with it.
From lodging to decision
- The completeness check.
The first look checks that the application is complete; it is not an assessment. No law sets how long it takes, and the Authority aims for 5 to 10 working days from lodgement. A failed check carries a fee, which can rise with each failure notice. Once the fees are paid, the DA counts as lodged and moves into assessment.
- Public notification.
Notification follows lodgement and runs alongside the referrals and the assessment. For most DAs the minimum period is 15 working days; a DA for significant development is notified in two stages, at least 20 working days and then a further 10. The Authority can extend the period in some cases. The Authority generally writes to the neighbours: land touching the block, and land separated from it only by a road, a creek or a similar divide.
A representation is a comment on a DA or an objection to it, and it counts only if it arrives within the notification period. Representations go on the public register and are published on the Planning website. What matters is what they say, not how many there are. Everyone who makes one in time is told the decision in writing, and may have review rights.
- Referral to other entities.
Which entities see a DA depends on what is proposed, where, and other factors, and some referrals are required by law. If the Authority approves a DA consistently with an entity’s advice, that advice is binding. Advice that arrives late carries less weight and does not hold up the decision. A DA affecting a registered tree or a declared site cannot be approved against the advice of the Conservator of Flora and Fauna. Where a proposed approval might significantly harm a matter the Commonwealth protects, it goes to the Commonwealth, which has 10 working days to advise; advice given in time binds the approval.
- Further information.
If the Authority asks for more information, the clock on the decision pauses. Where a DA does not meet the Territory Plan and looks headed for refusal, the Authority can give pre-decision advice.
- The decision.
The decision-maker must approve the application, approve it subject to conditions, or refuse it. The decision notice is published on the Authority’s website.
The clock
Table 192 of the Act sets the most working days the decision may take. A referral of the proposed decision to the Commonwealth Minister adds 10 working days, and the clock stops while the Authority waits for further information it has asked for, or for the applicant’s response to pre-decision advice. For an ordinary DA (one that is not a concurrent application or for significant development) the count starts on the day it is submitted, or on the day the Authority amends it if that happens.
- 30working days
- An ordinary DA on which no representation is made.
- 45working days
- An ordinary DA on which a representation is made.
- 60working days
- A DA for significant development.
- 20 Dec to 10 Jannot counted
- For these applications, weekends, ACT public holidays and this summer stretch are not working days.
If the time runs out without a decision, the decision-maker may still approve the application. For a review in ACAT, though, the application is taken to have been refused.
Reconsideration
An applicant unhappy with a decision of the Authority, whether a refusal or an approval with conditions or in part, can ask for reconsideration. It can be asked for only once, and not once an application has been made to ACAT for review of the same decision; it does not apply to a decision made by the Minister. The Act sets the terms:
- The request is in writing and signed by the applicant. If the applicant is not the lessee and the land is leased, the lessee signs too.
- It is made within 20 working days of being told of the decision, or a longer period the Authority allows, and it states its grounds.
- It is published on the Authority’s website.
The Authority then has 20 working days to confirm the decision or substitute a new one, a period the Authority and the applicant can agree to extend. If the first decision was made on the Authority’s behalf, the Authority itself or someone senior to the original decision-maker reconsiders it.
Review in ACAT
ACAT can review only the decisions a law gives it power over. For planning, ACT Planning points to Schedule 6 of the Act to see which decisions are reviewable, and a decision letter that can go to ACAT says so.
When someone other than the applicant seeks review of a DA decision, they have 20 working days after being given notice of the decision, and that period cannot be extended. If a third party (anyone other than the applicant or the Authority) applies to ACAT after the applicant has sought reconsideration, the reconsideration application is taken to be withdrawn. Applying does not usually stop the decision taking effect, unless ACAT orders a stay.
ACAT’s guide to planning reviews sets out the usual rhythm. A directions hearing generally comes about 28 days after the application is lodged, and an early mediation or conference, if one would help, generally follows within a week. The law gives ACAT 120 days to decide a planning review. ACAT can confirm, vary or set aside the decision, and each side generally pays its own legal costs. A party who thinks ACAT erred can apply to appeal within 28 days.
Territory priority projects
A territory priority project is a development proposal declared under section 218, or one related to light rail, public housing or community housing. The Chief Minister and the Planning Minister declare it jointly, before any DA is lodged, after a consultation of at least 15 working days. The Legislative Assembly then has 2 sitting days to approve or refuse the declaration, and if it passes no resolution the declaration is taken to be approved.
The DA then follows the usual process, notification and referrals included, but the Planning Minister decides it. Third parties cannot take that decision to ACAT. The declaration, or a related decision, can be taken to the ACT Supreme Court, with 2 months to start proceedings.