Australian Capital Territory Numbered Regulations

PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 5) (NO 15 OF 2009) - REG 9

substitute

1.100A     Otherwise non-compliant single dwellings

    (1)     Building a single dwelling (the dwelling ) or altering a single dwelling (the "alteration") on a block if—

        (a)     the building of the dwelling or alteration would be exempt under section 1.100, apart from the encroachment of the dwelling or alteration in 1 or more of the following ways:

              (i)     beyond the front, side or rear setback required under the defined rules;

              (ii)     beyond the building envelope that applies, under the defined rules, to the block where the dwelling or alteration is being built;

              (iii)     into the minimum private open space required under the defined rules; and

        (b)     the planning and land authority declares (an exemption declaration ) that the dwelling or alteration does not stop being an exempt development because of a non-compliance with the defined rules identified in the declaration.

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

        (a)     the distance by which any setback for the dwelling or alteration, that is required by the defined rules, is reduced to allow for the encroachment;

        (b)     the distance that any element of the dwelling or alteration may extend beyond the building envelope that applies, under the defined rules, to the block where the dwelling or alteration is being built;

        (c)     the distance by which any element of the dwelling or alteration may encroach into the minimum private open space required under the defined rules.

    (3)     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).

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

        (a)     the non-compliance is minor; and

        (b)     building the dwelling or alteration other than in accordance with the defined rules—

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

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

    (5)     In this section:

"block"—see section 1.100 (4).

"defined rules" means—

        (a)     the relevant rules in any relevant precinct code that would apply if the dwelling or alteration were not exempt; or

        (b)     the relevant rules in the Residential Zones—Single Dwelling Housing Development Code that would apply if the dwelling or alteration were not exempt.

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

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