“When disallowing former planning decisions, the Administrative Appeals Tribunal often makes serious criticisms of those making planning decisions. Such rejections do not go down well,” writes “Canberra Matters” columnist PAUL COSTIGAN.

THERE has been a load of rubbish spread around about what happens when residents challenge decisions by the ACT chief planner. 

They do this by taking the planning decisions to the Administrative Appeals Tribunal. If the appeal submission is accepted, the tribunal is tasked to rule on whether or not the original decision was faulty – did the chief planner follow his own rules?

When disallowing former planning decisions, the tribunal often makes serious criticisms of those making planning decisions. Such rejections do not go down well. 

Over the years, the planning system has been constantly rejigged to make things easier for certain developments. When this hasn’t worked, the other option has been to accept that the developer should not be inconvenienced by some of the rules. It is called being “outcome focused” – the developer gets what they want.

The planning authority’s rules have become flexible and when they do this, they hope that no-one in the community will notice. Occasionally residents do notice and have tried to negotiate, without success.  

Hence the appeals tribunal becomes the only option. This is the last thing residents want to spend committing time and energy undertaking.

Over a decade ago, after a very difficult case involving a cohort of lawyers representing the chief planner and the developers, a local with a history of the ACT Civil and Administrative Tribunal (ACAT), commented that this is not what was meant to happen. 

She explained the original intent was for it to be about negotiation. She said it was definitely not meant to involve the heavy presence of lawyers. Unfortunately, the normal is for the Planning and the developers to band together to present a wall of well-paid lawyers and experts to intimidate residents challenging the decision. 

Taking matters to the appeals tribunal is very stressful for residents. They do it on their own time. If they are in employment, they have to take time off – sometimes annual leave – to attend hearings. 

The well-paid lawyers take an adversarial attitude, as if they were in a criminal court. They challenge everything about the residents, their motives and what they may have written elsewhere sometimes tangential to the appeals processes. 

The combination of the government and developer advocates often argue the developer does not need to abide particular planning rules on the basis that the chief planner has allowed exceptions – no matter how outrageous.

If that is not daunting enough, recently residents were told that developer’s legal preparations costs were around $5300 plus there would be the costs of $650 an hour for the hearings. The developer stated that unless the residents withdrew, that they would be asking for those legal costs to be paid for by the residents.

Resident sent threatening defamation letter

In another case the resident leading the appeal was sent a threatening letter about a possible defamation case. This use of lawyers to threaten the residents is another ugly part of how development is carried out by those close to the government.

There are also government support groups who have been advocating that the rules need to change to stop community groups “suing” the government over developments approved by the planning authority. They are asking the government to shut down one aspect of the democratic processes. 

They are not acknowledging that an appeal is usually successful when planning rules have not been enforced by the chief planner. That is, if the chief planner enforced his own rules, there would most likely be no appeals. This is particularly worrying with rules being often not enforced for social-housing developments, as if the quality of build is not so important for social-housing tenants.

The chief planner’s deregulating reforms being considered by Greenslabor will take care of these pesky appeals. These are huge changes to make it even easier for the chief planner to approve developments and to exclude residents even more from the process. Significantly, these changes will remove the elected Assembly from decisions more than previously.

The chief planner’s reforms are not about planning and anyone who still thinks that has missed the point of the chief minister’s agenda. If passed, they will allow the chief planner far more unchallengeable power and to have less-enforceable rules to consider. 

The ACT Greens should refuse to join with ACT Labor to allow this massive deregulation of planning to become law.