Page 5569 - Week 13 - Wednesday, 17 November 2010
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These are radically different provisions between plan variations and technical amendments. In the first, there is a comprehensive process for inclusion, notification and obligation between the planner and the community through the Assembly. In the second, there is a minor process for what should be minor alterations. The question at the heart of this motion is whether the changes detailed in variation 2010-31 are actually technical or in fact substantive changes to the plan and should go through the normal and formal process of inclusion, notification and Assembly involvement.
In order to determine which of these is in fact the case, it is important to, I think, first take a plain reading of the words. Do these changes, to a reasonable person, seem technical or seem substantive? Technical at a commonsense level means minor, insignificant, of a detailed rather than fundamental nature. Typos, corrections, amendments would all reasonably be seen as technical. I submit the changes in this variation are far beyond that commonsense interpretation.
I refer to the Crace concept plan from ACTPLA of December 2008, figure 4. It clearly shows playing fields, open spaces and a mix of standard, medium and higher density urban areas. The concept plan indicates the block size mix as follows: 251 to 350 square metres, seven per cent; 351 to 450 square metres, four per cent; 451 to 650 square metres, 68 per cent; 650 square metres plus, eight per cent; multi-units, 13 per cent. That is no longer the case. The Casey concept plan prides itself on achieving this mix of dwellings: terraces, 37 per cent; individual small blocks, 19 per cent; medium blocks, 28 per cent; large blocks, 16 per cent. There is once again provision for playing fields. That is no longer the case.
Compare that to the technical amendments’ proposed variation: in Crace, increase maximum dwelling number from 1,200 to 1,800, that is, an additional 600 dwellings; delete the section on housing policies; amend open space provisions to remove requirements for a neighbourhood playing field. In Casey, it is: increase maximum dwelling number from 1,940 to 2,600, that is, an additional 660 dwellings; amend commercial centre provisions reflecting the government supermarket policy; amend open space provisions to remove requirements for a stand-alone playing field. On any commonsense reading, these are more than technical changes. These are fundamental alterations to the look, feel, amenity and services of these suburbs.
As well as the plain-reading, commonsense assessment, there is a legal analysis of the provisions of the act and whether these changes should properly be considered to be technical. These exist in part 5.4 of the Planning and Development Act. First, it seems unfortunate that the arbiter of what is and is not technical seems to be ACTPLA themselves. Section 89 stipulates that the section applies:
… if the planning and land authority … that a plan variation would, if made, be a technical amendment.
However, as that seems to be the case, the act can be consulted to determine whether their own tests for what constitutes a technical variation are met. These are in section 87 that provides for a number of instances that should be considered technical variations. They are: error variation, section 87(a); code variation, section 87(b);
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