19 May 2016

Participants at Moulis Legal’s recent Property Business breakfast seminar were united in their concern and criticism of the present state of the law and administration of mixed-use development in Canberra. Regrettably the title of our event, Canberra’s mixed use development laws – uncool in the capital, matched its verdict.

In an absorbing interchange, the consensus that emerged was that the ACT Government urgently needs to facilitate and promote investment in urban living by addressing the legal mechanisms for mixed-use development and mandating coherence in agency approvals.

Failings that were highlighted included:

  • no formalised rules to facilitate and protect building and strata management schemes;
  • “giving in” to the minority of users, or even a single user, on amenity issues to the detriment of the majority;
  • approval agencies actively preventing mixed-use outcomes through inflexibility and outdated rules;
  • a community title system with no rules for sharing spaces owned by other titleholders in the community;
  • no statutory rights of access between “neighbours” in the same development;
  • uncertainty about where and how to create easements – private, statutory or Crown lease.

The emotion was high as developers recounted difficulties securing national chain tenants, flawed government EOIs and investor disinterest brought about by the inadequacy of the ACT’s laws and the failure of the government’s policies. They cited examples of the exercise of agency powers – relating to things like garbage collection, outdoor dining and mechanical and electrical services – which were not consistent with the government’s planning rhetoric. The experience of the industry experts was that the factors that make mixed-use development such a vibrant success in other jurisdictions are not understood in Canberra. The desired social and commercial outcomes are not being met.

Gordon Lowe of The Molonglo Group, developers of Canberra’s pre-eminent mixed-use project “New Acton”, encapsulated the mood with this:

Mixed use developments test the spectrum of senses from the acoustics to the aromas. Whether it’s the reversing truck, the jazz band doing their Sunday gig or the diners enjoying an afternoon of food and wine, mixing the commercial with the residential brings with it challenges that can be overcome with a mature planning structure and legislative framework.

On the same theme, Kristi Jorgensen of Purdon Planning said:

Canberra is pretty far behind the times and when you look at the benefits of what’s coming out of mixed use developments internationally, it’s clear Canberra needs to push the re-set button on its legislative requirements.

But there is some cause for optimism. Megan Dixon, the ACT Government’s program manager for strata reform, reported that decisions would soon be made about the kinds of things that could be done by the government, and the expenditure needed to do so. She encouraged the property industry to continue to make its views known.

We thank Gordon, Kristi and Megan for sharing their insights and proposals for change, as well as everyone else who attended for their contribution to this important debate.

Moulis Legal’s property law team advises Australian and international businesses on the acquisition and sale of commercial property, land development, development approvals, major leases and environmental compliance. For more information, please contact Daniel Moulis on +61 2 6163 1000 or