Background
The ACT Government has released the much awaited draft new Territory Plan (Draft TP) for public consultation until 14 February 2023. The Draft TP is the first step in the replacement of the existing Territory Plan 2008 (ACT): the primary statutory document that guides planning and development in the ACT.
Alongside the Planning Bill 2022 and the draft District Strategies, the Draft TP is one of the outcomes of the ‘ACT Planning System Review and Reform Project’ which seeks to shape and actualise a new planning system for the ACT.
The Draft TP presents a change in approach to development assessment, driven by structural and policy-based changes. The ACT Government maintains that the new Draft TP is “outcomes focussed” rather than “compliance focussed”. This is achieved by:
- restructuring the Territory Plan components;
- transforming strict assessment rules and criteria into a set of policy, impact and outcome-based development assessment requirements; and
- introducing supporting materials, including Design Guides and Technical Specifications through policies within the Territory Plan.
Overall, the Draft TP contains some significant changes, whilst preserving some existing features which remain effective and fit-for-purpose. Not to scare the horses too much, the current zones maps and land use tables (which are now in the zone policies) have not been materially changed and remain the starting point for identifying the applicable zone and permitted uses (along with the Crown lease). Key components of the Draft TP, however, are yet to be published, and it is unclear how its new development assessment framework will manifest in practice.
The big unanswered questions are:
- how will this new outcome focused planning system be implemented by the Authority in practice - ie will the Authority officers and agencies still fall back to a rules based mentality or will there be a genuine focus on the end product and what impact it will have on its immediate environment and community;
- how will the new Assessment Outcomes be interpreted (ie narrowly or widely) and what significance will be given to the precedent of earlier interpretations on different developments (even if they were contentious); and
- will the community accept less of a clear rules-based approach to planning their city and neighbourhoods or will they be very suspicious of the new assessment system.
In this briefing, we summarise the key proposed changes.
Structural Changes
The Draft TP restructures the Territory Plan components. Some components have remained the same, some have been renamed and some new components have been added.
Territory Plan Maps and Land Use Tables remain the first point of reference for identifying relevant districts or zones and the permissible development types, respectively.
The lists of relevant Policy Outcomes have been amended to reflect and give effect to government policies, as outlined in section 3.
The “Rules” and “Criteria” of the current Territory Plan have been renamed and tweaked as Assessment Requirements and Assessment Outcomes (respectively). Their content has also been revised and their weight in the development assessment amended.
The District Policies replace the current precinct codes. In the Draft TP District Policies, Assessment Requirements are mandatory standalone ‘pass-or-fail’ requirements that do not require reference to other Territory Plan provisions and must be satisfied by any development application. Often in the new District Policies, elements appear to have been dumped in all together in an attempt to reduce the apparent size of the requirements but at the cost of readability.
Assessment Outcomes are criteria that will lead to a development being approved or refused. In assessing a development application, the proposed development must be consistent with the relevant elements of the Design Guides, Development Compliance Provisions and Technical Specifications, outlined in section 5.
Where the application is not entirely consistent with the above, further information will be required to ascertain whether the proposed development has achieved good planning outcomes against the applicable Assessment Outcome and Policy Outcomes.
The Draft TP District Policies also introduce Development Compliance Provisions, which call up a range of Technical Specifications as an alternative and simple way of achieving compliance.
Where applicable, development assessments will also refer to three supporting materials: District Strategies, Design Guides and Technical Standards.
Policy Implementation
The Draft TP presents various zone policy changes which are designed to deliver on key government commitments, including:
- amended vehicle parking requirements to encourage and support active travel, while requiring the provision of infrastructure for EV charging facilities;
- assisting to achieve net zero emissions by prohibiting gas connections in new residential subdivisions and introducing large battery storage and hydrogen production as permitted uses in the Territory;
- providing for a greater range of housing such as community housing (affordable rental) and build-to-rent development, aimed at assisting in addressing housing affordability;
- other changes to address affordability and assist with 70% of new growth being accommodated within the existing urban areas (a target of the ACT Planning Strategy 2018) include:
- allowing a block in RZ2 to RZ5 zones to be subdivided without being required to construct the new dwellings first – allowing new vacant suburban blocks to be created, developed and sold;
- multi unit development in the RZ2 zone being able to have more dwellings as part of the development; and
- allowing apartments (of no more than two storeys) in the RZ2 zone to provide more single level dwellings (that are easier for the resident to age in place), rather than only townhouses.
- addressing concerns regarding mixed use development by introducing a requirement to provide a ‘buffer’ use within a building between residential dwellings and ‘noisy’ uses.
Substantive Changes
The Draft TP includes various substantive changes. We have outlined a number of relevant substantive changes below.
Use Changes
The Draft TP introduces a number of land use changes that add or amend the relevant zone definitions and permitted uses in zones.
- Build-to-rent developments have been extended to all residential zones and commercial zones (except CZ6);
- The definition of ‘commercial accommodation unit’ has been further clarified to contemplate ‘Airbnb’;
- Local centre uses are extended to animal care facility, club, drink establishment, produce market;
- Mixed use zone uses are extended to indoor recreation and public transport facility;
- Industrial zone uses are extended to data centre, drone facility, major electrical storage and utility hydrogen production facility;
- Community facility zone uses are extended to community housing;
- Overlays have been removed as part of the changes introduced by the Planning Bill 2022; and
- Open space zones use are extended to utility hydrogen production facility.
Definition changes
New Definitions
New definitions have been introduced to the Draft TP following extensive consultation. These include:
- Build-to-rent development - defined as the use of land for multi-unit housing that is held by a single owner for the purpose of providing dwellings for lease under residential tenancy agreement – so included as a residential use;
- Café – no longer having to rely on “restaurant”;
- Complimentary use;
- Data centre;
- Drone facility; and
- Utility hydrogen production facility.
Amended Definitions
A number of definitions have been amended to improve policy outcomes and remove ambiguity. These include:
- Car park, which now includes “any manoeuvring space and access thereto”;
- Serviced apartment, which is now listed as an example use for a ‘commercial accommodation unit’ instead of a separate term;
- Attached house, which now takes into account the provision of communal basement car parking;
- Upper floor level, which now means a finished floor level that is greater than 1 metre;
- Lower floor level, which now means a finished floor level that is 1 metre or less, rather than 1.8 metres; and
- Private open space, which no longer identifies a maximum of 25% roof coverage limit in the definition.
Residential Policy Changes
The Draft TP provides for a number of substantive changes to the assessment of residential developments.
- Subdivision: subdivision within existing residential zones is restrictive and requires significant upfront investment. The Draft TP allows subdivision in RZ2 and RZ5 (but not RZ1) zones before the new dwellings are constructed enabling ‘vacant’ blocks to be sold in areas close to services and facilities. The new blocks will need to demonstrate the ability for compliant dwellings to be located on the new blocks but will not need to have a constructed dwelling on site to be approved.
- Plot ratio and site coverage: plot ratio has been removed as a mandatory requirement and incorporated into the Technical Specifications. Site coverage provisions will become mandatory as an Assessment Requirement in the Residential Zone Policy. Plot ratio is now set at 50% for multi-units in RZ1 and RZ2.
- Dwelling density: the current maximum number of dwellings permitted on a block can make redevelopment unfeasible. The Draft TP amends the maximum number of dwellings on a RZ2 block to one dwelling per 250sqm above the minimum block size and adds criteria to existing provisions to consider articulation and other controls to address character and design quality.
- Dwelling replacement: dwelling replacement requirements have been removed and addressed by dwelling size requirements in the Design Guides.
- Apartments in RZ2: apartments are currently prohibited in RZ2. The Draft TP allows for apartments (of no more than two storeys) to be developed in RZ2.
- Basements under two storeys: the restriction on basements under two storey houses in RZ1 has been removed – this will free up housing design.
- Buffer use: a new requirement has been added for a ‘buffer’ use within a building between residential dwellings and ‘noisy’ uses.
- Bushfire risk: the Draft TP prohibits the development of new residential blocks in high bushfire risk areas.
- Gas connections: the Draft TP prohibits gas connections to new residential subdivisions (both greenfield and redevelopment sites).
- Solar envelope: the current solar building envelope requirements are complicated. The Draft TP provides for a simplified solar angle of 31° for all developments in the form of a ‘Development Compliance’ option.
- Ground floor residential uses: the Draft TP prohibits residential uses at ground level in CZ1 Core zones.
- Max height of lower floor level: will be reduced from 1.8m to 1.0m.
Commercial Policy Changes
The Draft TP provides for a number of substantive changes to the assessment of commercial developments.
- CZ4 and CZ5 Max GFA: there is a specified limit of 1,500sqm for retail uses. It is presumed this restriction is per premises/shop and not per crown lease – otherwise it would be inconsistent with DV381.
- CZ4 – maximum storey height: the max storey height is 2 (this is the Commercial technical specifications so in theory can be exceeded. This corresponds with the current position where the rule is 2 storeys but the criteria can permit more).
- Local centres where reduction of more than 50% of the commercial area: if it is proposed to reduce the commercial use by more than 50% then it must be demonstrated by economic report that the whole centre is cot commercially viable and the centre will be commercially viable after the development.
- Group centre height restriction: only 2 storeys will be allowed in group centres (although this is only a specification and in theory could be exceeded).
- Configuration of developments with 40 or more dwellings: there is presumed to be a min rate of studio or 1 bedroom – 20%; 2 bedroom – 30%; and 3 or more bedroom – 20%.
- Office carparking rates: for city centre and town centres the rate will be 1.5 spaces per 100sqm GFA (up from the current 1 space).
New supporting materials
Design Guides
The Draft TP introduces new Design Guides that support an ‘outcome-based’ approach to development assessment.
EPSDD are currently developing the Urban Design Guide, addressing public realm outcomes at a range of scales, and the Housing Design Guide, addressing housing at a range of densities and apartment design.
The Housing Design Guide, in conjunction with the relevant Policy and Assessment Outcomes, will provide guidance on:
- visual privacy and interface;
- solar and daylight access;
- common circulation and spaces;
- apartment size and layout;
- ceiling heights;
- private open space and balconies; and
- natural ventilation.
The Urban Design Guide, in conjunction with the relevant Policy and Assessment Outcomes, will provide guidance in relation to important urban large scale development, being:
- precinct scale or urban design developments;
- developments exceeding one hectare or comprising more than 1,000m² of public or common space; or
- developments that required advice from the Design Review Panel.
It is possible for both Design Guides to apply to a development.
Technical Specifications
The Draft TP introduces Technical Specifications which are tailored to the relevant zone policy and are “called up” by the Development Compliance Provisions. They provide possible solutions for development compliance, and hence are not mandatory. This is why language like “providing possible solutions” appears throughout the specifications. Generally, if a proposal satisfies the relevant technical requirements then it should not require further assessment in respect of those requirements.
Each Technical Specification contains a control, which outlines the general issue at hand, and a specification, which suggests a solution that supports compliance with respect to that issue. Technical Specifications deal with building setbacks, building heights, stormwater management, parking standards, storage standards, and other matters.
District Strategies
Alongside the Planning Bill 2022 and the Draft TP, the District Strategies are one of the outcomes of the ‘ACT Planning System Review and Reform Project’ which seeks to shape and actualise a new planning system for the ACT.
The District Strategies are developed in relation to ACT’s nine districts:
- Belconnen
- East Canberra
- Gungahlin
- Inner North and City
- Inner South
- Molonglo Valley
- Tuggeranong
- Weston Creek
- Woden
These District Strategies underpin the ‘District Policies’ contained in the Draft TP and are used as supporting materials in its development assessment framework.
Public Consultation
Overall, the Draft TP contains some significant changes, whilst preserving some existing features which remain effective and fit-for-purpose. However, key components of the Draft TP are yet to be published, and it is unclear how its new development assessment framework will manifest in practice.
The Draft TP is open for public consultation until 14 February 2023.
You can learn more about the Draft TP on the ACT Government’s ‘ACT Planning System Review and Reform’ website.
