This article was written by Chris Wheeler and Sarah Lowe.
The ACT Civil and Administrative Tribunal (ACAT) has upended the long accepted relationship between rules and criteria in the assessment of whether a proposed development is consistent with an applicable development code under the Territory Plan.
In a recent decision, Glass v ACT Planning and Land Authority (Glass), the Tribunal determined that, when assessing a proposal’s compliance with a code, consideration of the extent to which a proposal departs from a rule is a relevant consideration when determining whether it complies with the corresponding criterion. This interpretation of the relationship between rules and criteria is entirely inconsistent with the intended operation of the Planning and Development Act 2007 (ACT) (PDA) and Territory Plan, and is at odds with accepted industry practice.
The status quo
It is uncontroversial that a development application assessed in the ‘merit track’ under the PDA can only be approved if it is consistent with the relevant code. As those in the industry will know, development codes are broken into elements, and each element comprises rules and criteria. The rules provide a quantitative measure, and a proposal that complies with a rule automatically complies with that part of the code. Where a proposal does not meet the rule, it will be considered against the corresponding criteria. The criteria provide qualitative considerations for determining whether a proposal is consistent with the objectives of the code despite it not meeting the hard and fast requirements of the rule. Considerations under the criteria might include the appropriateness of a development’s scale and its consistency with the desired character of the zone, for example. Implicit in this system is the understanding that planning and development controls cannot be one-size fits all, and that the community is best served by allowing flexibility for proposals that meet planning objectives despite not fitting neatly within the narrow confines of the rules.
The intention (and, until now, universally accepted interpretation) of the rule and criteria relationship is that the determination of a proposal’s compliance with a rule or a criterion requires two entirely separate assessments. No criterion refers to the degree of a proposal’s non-compliance with the corresponding rule as a consideration. The intention of the creators of the Territory Plan was to allow for a subjective, qualitative assessment of a proposed development, acknowledging that good design and positive community outcomes cannot fit within the arbitrary quantitative limits set down by the rules in every case.
Glass v ACTPLA
The decision in Glass may have turned all of this on its head. In this case, buildings in a proposed development did not comply with the relevant building height rule. The ACT Planning and Land Authority (ACTPLA) determined, however, that the buildings did comply with the corresponding criteria. In its decision to overturn ACTPLA’s determination, the Tribunal stated that the extent that a proposal departs from the rule is a relevant consideration when determining whether it complies with the corresponding criterion. ACAT applied this interpretation by having regard to the scale of the buildings’ departure from the rule, and whether there were sufficient ameliorating features to counteract the departure, in deciding that several of the buildings did not meet the criteria.
Provided that that the qualitative criteria are met, a proposal’s non-compliance with the corresponding rule should have no bearing on the decision to grant a development approval. If such an outcome was intended, the drafters of the Territory Plan could simply have provided a range of acceptable deviation from the rule that is permissible if the other criteria are met. However, this approach would significantly undermine the solution that the criteria provide for innovative development that positively contributes to the objectives of a zone despite not meeting the arbitrary limits of the rules. ACAT’s decision in this case is inconsistent with the intended operation of the Territory Plan and will impede good development in the ACT if it is allowed to stand.
The Property Council of Australia and others will urgently approach ACTPLA and the ACT Government seeking amendments to the Territory Plan and PDA to clarify that the assessment of a development proposal against the qualitative criteria must not be limited by consideration of any departure from the rule.