Australian Capital Territory Numbered Regulations

PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 1) (NO 3 OF 2009) - REG 11

insert

1.100A     Otherwise non-compliant single dwellings—new residential land

    (1)     The building of a single dwelling on a block if—

        (a)     another dwelling has not been built on the block; and

        (b)     if the block is a preliminary block—the dwelling is built by the lessee of the holding lease; and

        (c)     the dwelling does not comply with—

              (i)     the relevant rules in any relevant precinct code; or

              (ii)     the relevant rules in the Residential Zones Single Dwelling House Development Code; and

        (d)     each non-compliance relates to the encroachment of the dwelling—

              (i)     beyond the front, side or rear setback required under the rules mentioned in paragraph (c); or

              (ii)     beyond the building envelope that applies, under the rules mentioned in paragraph (c), to the block where the dwelling is being built; or

              (iii)     into the minimum private open space required under the rules mentioned in paragraph (c); and

        (e)     the planning and land authority declares (an exemption declaration ) that the building of the single dwelling does not stop being an exempt development because of a non-compliance under paragraph (c) identified in the declaration.

Note 1     Relevant rules —see the Act, dictionary.

Note 2     The general exemption criteria are not applied because the relevant rules in the territory plan include requirements to similar effect as the criteria.

Note 3     Other territory laws, including the Heritage Act 2004 , must be complied with (see s 1.4 and s 1.14).

    (2)     For subsection (1) (b), a dwelling is taken to be built by the lessee even if some or all of the building work is done by an employee or contractor of the lessee.

    (3)     An exemption declaration must state the following distances (each of which is an extended distance ):

        (a)     the distance that any element of the dwelling may extend beyond the building envelope that applies, under the rules mentioned in subsection (1) (c), to the block where the dwelling is being built;

        (b)     the distance by which any setback for the dwelling, that is required by the rules mentioned in subsection (1) (c), is reduced to allow for the encroachment;

        (c)     the distance by which any element of the dwelling may encroach into the minimum private open space required under the rules mentioned in subsection (1) (c).

    (4)     Not later than 10 working days after a person applies to the planning and land authority for an exemption declaration the authority must—

        (a)     make the declaration; or

        (b)     refuse to make the declaration.

Note 1     If a form is approved under the Act, s 425 for this provision, the form must be used.

Note 2     A fee may be determined under the Act, s 424 for this provision.

Note 3     The requirement to make a decision under s (4) does not lapse if the 10-day time limit is not met (see Legislation Act, s 152).

    (5)     However, the planning and land authority must not make an exemption declaration in relation to a non-compliant dwelling unless satisfied that—

        (a)     the non-compliance is minor; and

        (b)     building the dwelling other than in accordance with the rules mentioned in subsection (1) (c)—

              (i)     will not adversely affect someone other than the applicant; and

              (ii)     will not increase the environmental impact of the dwelling more than minimally.

    (6)     In this section:

"block"—see section 1.100 (4).

"preliminary block"—see section 1.100 (4).

"setback"—see the territory plan (13 Definitions).