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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (NO 3) (NO 33 OF 2008)
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (No 3)
Circulated by authority of
Andrew Barr MLA
Minister for Planning
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (No
3)
EXPLANATORY STATEMENT
The Planning and Development Amendment Regulation 2008 (No 3) is made under section 426 of the Planning and Development Act 2007 (the Act).
Historically, there have been significant levels of minor contravention of development approvals (DA), for example, the height of floors are not constructed to the exact millimetre dimensions stated in the DA, sometimes varying by +/- 300mm or more. Also, many people building their home often visit the site during construction and discover that construction could benefit from minor variations, such as altering windows or door or making certain rooms larger, etc. In the past, such contraventions and variations were readily regularised by way of a regularising DA amendment after-the-fact. Such amendments, depending on their nature, were approved relatively quickly or subject to significant delay due to the need for public notification.
Any significant delay in obtaining the relevant DA amendment can result in delayed lawful occupation of completed buildings which adds to development holding costs. Sectors of the ACT construction industry have expressed concern with increased delays during implementation of the new Planning and Development Act 2007 and new territory plan. These sectors have expressed the view that a tolerance on allowable changes to construction under a DA would benefit all stakeholders without significant detriment.
An intention of this amending regulation is to overcome delays caused by minor contraventions of DAs by inserting a range of provisions that will “over-ride” a DA. The provisions prescribe the tolerances within which development under a DA may lawfully contravene the DA without the need for another DA or a DA amendment. These provisions require modification of the Act by this amending regulation (under section 429 of the Act).
The amending regulation also modifies the Act by adding a provision that will
permit minor DA amendments to be assessed and processed quickly without further
public consultation on the development or further referral to a government
agency for advice. The ability to proceed without these steps is tightly
circumscribed by this amending regulation and is consistent with the approach
already taken in the Act with amendments to development applications. This
modification, like the others, will expire on 31 March 2010. Consideration will
be given at a later date as to whether this and other provisions should persist
beyond this period and whether an Act amendment should be proposed.
Delays
and problems can also arise if development that is intended to be carried out in
accordance with DA exemption parameters is done in a way that contravenes an
exemption parameter. Such contraventions mean the development is no longer DA
exempt. Presently, the only way to resolve such a contravention is to obtain a
relevant DA to reflect how the development has been carried out or to alter the
development so that it complies with the exemption parameter. An intention of
this amending regulation is to overcome this problem by prescribing allowable
tolerances and other variations to exempt developments to complement those that
apply to development under a DA. As far as practical, the parameters for
tolerances in the DA realm are of the same quantum as comparable parameters for
DA exempt developments.
Figures 1 and 2 at the end of this statement illustrate some of the above-mentioned tolerances and other permitted variation parameters.
The following summary of provisions of this amending regulation describe how the amendments create the broad framework to give effect to the tolerances and other permitted variations—
• section 4—expands the current kinds of DA exemptions to also include matters in new schedule 1A;
• section 5—“deems” certain changes, particularly new schedule 1A changes, to a development under a DA to be in accordance with the DA despite actual non-compliance with the DA;
• section 14—expands the current schedule 1, part 1.3, list of DA exemptions to cater for certain changes to windows and doors so that schedule 1 correlates with new schedule 1A in relation to windows and doors;
• section 20—inserts new schedule 1A which lists the DA exempt variations to—
o development under a DA; and
o DA exempt developments;
• section 21—modifies the Act by providing a new section 198C
(When development approvals do not require amendment), to entitle the
Planning and Development Regulation 2008 to prescribe some of the matters
mentioned herein above.
Other matters dealt with by this amending regulation
include the following:
(1) clarification of the prescribed criteria for
direct sales for supportive accommodation - see section 6;
(2) the
management of “National Land”. The Commonwealth has responsibility
for management of "National Land", for example, the parliamentary
triangle. The Commonwealth Minister may declare land to be National Land
under s27 of the Australian Capital Territory (Planning and Land Management)
Act 1988 (Cwth). The Minister may also remove National Land status under
this section. Section 291 of the repealed Land (Planning and Environment)
Act 1991 (the repealed Act) included a provision to the effect that should
National Land lose its National Land status (and so become Territory Land
managed by the Territory), any leases existing prior to this shift would survive
and be deemed to be leases granted under the Territory's legislation. Section
291 (from the transitional chapter of the repealed Act) was inadvertently
omitted from the Act. This amending regulation restores the provision so that
leases over formerly National Land are deemed to be granted under the Act - see
section 23;
(3) There is some doubt as to whether the transitional
provisions in the Act adequately cover the scenario where the planning and
land authority (the authority) or Land Development Agency enters into a
contract for the sale of a lease prior to commencement of the Act on 31 March
2008 but the lease is not granted until after this date. This amending
regulation amends the Act by inserting provisions to cover this gap –
see section 22. Such leases are to be granted under the repealed Act in
the old format and old wording as contemplated at the time of the original
contract unless the purchaser agrees to the grant being made under the Act and
in the new format. In either case, the leases are covered by the Act as
though they were granted under the Act. This provision has retrospective
application in that it applies from 31 March 2008. For the amendment to apply to
all relevant leases, it needs to be operational from 31 March 2008. This
retrospectivity does not contravene section 76 of the Legislation Act
2001 because it is non-prejudicial.
Section 1 – Name of regulation – names the regulation as the Planning and Development Amendment Regulation 2008 (No 3).
Section 2 – Commencement – provides that the regulation commences on the day after its notification on the ACT legislation register.
Section 3 – Legislation amended – states that the regulation amends the Planning and Development Regulation 2008 (the regulation).
Section 4 – Section 20 – substitutes a new section 20 in the regulation. Section 20 defines exempt development for section 133 of the Act. New section 20 expands and clarifies the definition of exempt development.
Prior to the substitution, section 20 provided that a development is exempt
from the requirement for development approval if the development complied with
schedule 1 (Exemptions from requirement for development approval). The
substituted new section 20 restates that provision, and also expands the
provision so as to provide that a development is also exempt from the
requirement for development approval if:
(a) the development would comply
with schedule 1, or would be exempt from requiring development approval under
the relevant development table for the development, other than for a matter (the
relevant matter) to which schedule 1A (Permitted variations to approved and
exempt developments) applies; and
(b) the relevant matter complies with the
criteria for the matter in schedule 1A; and
(c) a designated development for
the development, as changed by the relevant matter, complies with the general
exemption criteria that are applicable to the development.
An example of the effect of item (a) above is as follows—
Schedule 1 provides exemption parameters for a carport which include a limit on the number of exempt carports that can be built within 1.5m of a side boundary—the limit is 2, maximum. If schedule 1A allows a horizontal tolerance to apply to the location of a 3rd carport and provided any encroachment into the 1.5m boundary clearance area is within that tolerance, the carport can be taken to not need a development approval merely because it contravened the limitation in schedule 1. This is because the contravention is within the relevant parameter of schedule 1A.
New schedule 1A (Permitted variations to approved and exempt developments) is inserted in the regulation by section 20 of this amending regulation (see below).
The expansion of section 20 is necessary to facilitate allowable tolerances which are the prescribed limits by which certain development can contravene relevant development approval or development regulation parameters. New section 20 caters for the fact that many buildings are commonly designed to take full advantage of the relevant development parameters, such as allowable building heights or set-back distances from neighbours, but actual construction may not comply exactly with the plans.
Without the allowable tolerances permitting such non-compliance, the only remedies to the non-compliance are to obtain a new development approval, or amendment to the development approval, as the case requires, or to correct the construction onsite. None of these options is cost effective or efficient or necessary to achieve the relevant policy objectives of development approvals, when the magnitude of the non-compliance is relatively insignificant, as is the case with the proposed allowable tolerances.
The notes to new section 20 specify the meaning of designated development and general exemption criteria. Designated development is as prescribed by schedule 1 (Exemptions from requirement for development approval) section 1.2. General exemption criteria, for a development, is as prescribed by schedule 1 (Exemptions from requirement for development approval) section 1.10.
The notes to new section 20 also explain that the definition of relevant development table is in the Dictionary of the Act, that the development may still need building approval under the Building Act 2004 and that the development must comply with the lease on which it is carried out.
Section 5 – New part 3.3 –Development approvals – when amendment not required - inserts a new part 3.3 in the regulation which comprises new sections 35 and 36. New section 35 specifies when amendment is not required to development approvals for new section 198C(2) of the Act. New section 198C of the Act is inserted by section 21 of this amending regulation through the new transitional section 429C (see below).
New section 198C(1) specifies that the section applies if:
(a) the
authority has given development approval for a development application; and
(b) the development is changed so that it is not covered by the
approval.
Under new section 198C(2), a regulation may prescribe the circumstances in which a development in accordance with the changed development is taken to be in accordance with the development approval.
New section 198C is necessary to ensure that where development fails to comply with the relevant development approval, the failure can be taken not to have occurred for the purposes of determining if the development complies with the approval, but only if the non-compliance complies with the relevant requirements of the relevant regulation. Such requirements include requiring the magnitude of the noncompliance to be within the parameters of the relevant above-mentioned allowable tolerances. New schedule 1A prescribes the dimensional or other parameters of the above-mentioned allowable tolerances (see section 20 below).
New section 35 of new part 3.3 prescribes the circumstances when development approvals do not require amendment for the purposes of section 198C(2) as follows:
(a) the change relates only to a matter (the relevant matter) to which schedule 1A applies; and
(b) the change complies with the criteria for the relevant matter in schedule 1A; and
(c) a designated development for the development, as changed by the relevant matter, complies with the general exemption criteria that are applicable to the development except to the extent that the development approval allows the development to not comply with the criteria.
Thus, if a development does not comply with the development approval and the non compliance is within the parameters set out in schedule 1A, the development is taken to be in accordance with the development approval and neither a new approval or amendment of an already granted approval is required nor is on-site rectification necessary to achieve ‘deemed’ compliance with the approval.
This is best illustrated by a simplified example. A building is built but the vertical siting of the building does not comply with the height criteria for the development approval. Provided the height is within 340mm either above or below the point specified in the development approval, there is no need for a new development approval or rectification. (The 340mm parameter is set by schedule 1A.11 of this amending regulation in section 20 (see below)).
The notes to new section 35 explain that the development may still need building approval under the Building Act 2004 and that the development must comply with the lease on which it is carried out. The notes to new section 35 also specify the meaning of designated development and general exemption criteria. Designated development is as prescribed by schedule 1 (Exemptions from requirement for development approval) section 1.2. General exemption criteria, for a development, is as prescribed by schedule 1 (Exemptions from requirement for development approval) section 1.10.
New section 36 provides that part 3.3 expires on 31 March 2010.
Section 431 of the Act requires section 429 and regulations made under section 429 to cease two years after the commencement of the Act (ie two years after 31 March 2008). Section 429 and the regulations under this section are not saved by section 88 of the Legislation Act (because of the exception in section 88(2) of the Legislation Act). Thus, sections 198A to C inserted by this amending regulation (see section 21 below) are temporary and so new section 35 which refers to section 198C is also temporary.
Section 6 – Section 113(1)(b) – substitutes a new section 113(1)(b) in the regulation. The Act restricts the circumstances in which the authority may make a direct sale of a lease (see section 240(1)(a)(i)). The authority may make a direct sale where the sale meets criteria as prescribed by regulation. Section 113 of the regulation prescribes the criteria for a direct sale for supportive accommodation.
Section 100 of the regulation defines supportive accommodation as either a
retirement complex, residential care accommodation or supportive housing. These
terms are currently defined in the territory plan definitions.
Those
definitions are:
• Retirement complex means the use of land
for permanent residential accommodation for persons aged 55 years or over and
which consists of a grouping of self-care units as well as a hostel and/or
nursing home accommodation together with ancillary facilities provided
for the use of residents. Ancillary facilities may include chapels,
medical consulting rooms, meeting rooms, recreational facilities, therapy rooms,
kiosk facilities and the like.
• Residential Care Accommodation
means the use of land by an agency or organisation that exists for the
purposes of providing accommodation and services such as the provision of meals;
domestic services and personal care for persons requiring support. Although
services must be delivered on site, management and preparation may be carried
out on site or elsewhere.
• Supportive Housing means the use
of land for residential accommodation for persons in need of support, which is
managed by a Territory approved organisation that provides a range of support
services such as counselling, domestic assistance and personal care for
residents as required. Although such services must be able to be delivered on
site, management and preparation may be carried out on site or elsewhere.
Housing may be provided in the form of self-contained dwellings.
The
existing section 113(1)(b) of the regulation states that the criteria for the
direct sale of a lease for supportive accommodation includes the proposed lessee
being accredited (however described) under an Act, or Commonwealth law to
provide supportive accommodation. This requirement applies to all lessees
irrespective of the accommodation type. This universal requirement is
inappropriate because such accreditation is not always required for all of these
accommodation types.
New section 113(1)(b) removes the need for all
proposed lessees to hold an approval or to have accreditation under an Act or
Commonwealth law. The substituted clause states that if the proposed lessee
requires an approval (formerly referred to as accreditation), the proposed
lessee must hold the approval to meet the prescribed criteria. This substitution
ensures that where a proposed lessee does not require an approval under law, the
proposed lessee will not be prevented from potentially providing supportive
accommodation.
The substituted section also states that the proposed use
of the land relates to the supportive accommodation. This ensures consistency
between the supportive accommodation, the proposed lessee and the use of the
land.
Section 7 – Section 410 – omits the reference to schedule 5 and instead inserts a reference to schedule 20. This is necessary because schedule 5 is renumbered as schedule 20 by section 24 of this amending regulation (see below). The reason for changing the number of the schedule is to ensure that a clear record of transitional provisions is retained in the endnotes to the regulations. Once schedule 5 expires, there is a real possibility of the schedule’s number being re-used in the future and the reference to the modification of the Act in the endnotes will be lost.
Section 8 – Schedule 1 – omits the reference to section 20 and substitutes a new reference to section 20(1). This is necessary because of the changes made to section 20 of the regulation by this amending regulation (see section 4 above).
Section 9 – Schedule 1, section 1.1, definitions of designated development, finished floor level, general exemption criteria and surface water – omits these definitions from schedule 1, section 1.1. The definitions of these terms are inserted in identical form in the Dictionary of the regulation by sections 27, 29 and section 31 respectively of this amending regulation (see below). The definitions have been transferred to the Dictionary because they have general application for the regulation and their use is not restricted to schedule 1.
Section 10 - Schedule 1, part 1.2 heading – substitutes a new heading for Part 1.2 of schedule 1 to remove the superfluous words “for exempt developments”.
Section 11 – Schedule 1, section 1.12, note – substitutes a new note in schedule 1, section 1.12 to include a definition of surface water. This is for clarification purposes.
Section 12 – Schedule 1, section 1.15 – substitutes the words “relevant development” for the words “exempt development” in schedule 1, section 1.15. This is necessary because the term “exempt development” is defined elsewhere in the regulation to have a different meaning to that intended in section 1.15.
Section 13 – Schedule 1, section 1.16, examples and note - substitutes new examples and note in section 1.16 of schedule 1. This is for clarification purposes and to allow the examples to refer to some of the new provisions inserted by this amending regulation.
Section 14 – Schedule 1, section 1.21 – substitutes a new section 1.21 in schedule 1 to clarify that section 1.21 only applies to “low impact” external doors and windows in buildings. Section 14 also inserts a new section 1.21A in schedule 1 which applies to “high impact” external doors and windows.
Figure 1 at the end of this statement illustrates the relationship between low impact windows and doors, the adjacent floor level and natural ground level. Windows or doors that are not low impact windows or doors are high impact windows or doors. The 1 metre limitation correlates to the 1 metre maximum floor height for other development approval (DA) exempt circumstances, such as the maximum height of the floor of a deck. Limiting such floor heights to 1metre above natural ground level mitigates the potential for adverse impacts arising from overlooking of neighbouring property.
New section 1.21 Installation, alteration and removal of low impact
external doors and windows in buildings
This section applies to the
installation, alteration or removal of low impact external doors and windows in
a building.
New section 1.21 of schedule 1 prescribes some of the
technical parameters which
must be complied with for certain installations,
alterations or removals of low impact external doors and windows in buildings to
be exempt development. For a development to be exempt from requiring a
development approval, it
must comply with each of the 8 general exemption
criteria in schedule 1, part 1.2
(general exemption criteria). Criterion 8 of
the general exemption criteria states that the development must comply with any
other criteria in part 1.3 of schedule 1 that
apply to the development (see
schedule 1, section 1.18). In other words, a development is exempt only if it
complies with the criteria in part 1.2 of schedule 1 and any applicable criteria
in part 1.3 of schedule 1.
For the purposes of criterion 8, new section
1.21 of schedule 1 sets out the criteria, in addition to the general exemption
criteria, that must be complied with for the installation, alteration, or
removal (the relevant change) of low impact doors and windows in buildings to be
exempt development.
The criteria (as set out in new sections
1.21(a)-(e) of schedule 1) are:
(a) the height of the building’s
finished floor level, or other trafficable surface, immediately adjacent
to the relevant change is not more than 1 metre above natural ground
level. The limitation on the height ensures that modifications are not made
to doors or windows on an upper floor level, as defined by the territory
plan. Taking the natural ground level as the reference point
ensures that any earthworks undertaken on site do not increase the potential for
adverse off-site impacts, such as eroding neighbours’ privacy. Natural
ground level is defined in the territory plan, (Definitions).
(b) if
the relevant change is to an existing door or window, it must be within one (or
more) of the following parameters:
(i) the replacement of the door or window
with either a door or a window without changing the width of the opening in the
wall;
(ii) an increase in the width of the door or window by not more than
340mm;
(iii) an increase in the height of the door or window by not more than
340mm;
(iv) a reduction in the height, or width, or both, of the door or
window; and
(v) the installation of a wall instead of the door or window.
Figure 1 at the end of this statement illustrates how these parameters can be applied.
The 340mm dimension is based on the standard height of 4 courses of brickwork. A standard brick is 76 mm high x 230 mm long x 110 mm wide. With a 10mm bed of mortar, a single course of brickwork is 76mm + 10mm = 85mm approximately. Therefore, 4 courses = 4 x 85mm = 340mm. Four courses is generally considered to be an inconsequential amount by which a building’s position can change, considering the matters covered by a development approval.
(c) if the relevant change is not to an existing door or window, the relevant change can only be removing part of the wall and installing a door or window with an external horizontal opening of not more than 2 metres.
Figure 1 at the end of this statement illustrates how this parameter can be
applied.
The limitations imposed by new sections 1.21(b) and 1.21(c) ensure
that the relevant change can only be of a minor scale.
(d) no part of
the relevant change is less than 1.5 metres from a side boundary or 3 metres
from a rear boundary. Distance limitations from side and rear boundaries ensure
that large-scale alterations do not impose an undue impact on the amenity of
surrounding land, or land users.
(e) the designated development complies
with the applicable requirements in the general exemption criteria, sections
1.10–1.18, of schedule 1.
New section 1.21A Installation, alteration and removal of high impact
external doors and windows in buildings
This section applies to the
installation, alteration or removal of high impact external doors and windows. A
door or window is high impact if the height of the building’s finished
floor level, or other trafficable surface, immediately adjacent to the door
or window is more than 1 metre above natural ground level (See
section 1.21A(a)). Natural ground level is defined in the territory
plan, (Definitions).
Figure 1 at the end of this statement illustrates the relationship between
low impact windows and doors, the adjacent floor level and natural ground level.
Windows or doors that are not low impact windows or doors are high impact
windows or doors. The 1 metre limitation correlates to the 1 metre maximum
floor height for other DA exempt circumstances, such as the maximum height of
the floor of a deck. Limiting such floor heights to 1metre above natural ground
level mitigates the potential for adverse impacts arising from overlooking of
neighbouring property.
New section 1.21A of schedule 1 prescribes some of the
technical parameters which must be complied with for certain installations,
alterations or removal (the relevant change) of high impact external doors and
windows in buildings to be exempt development. New section 1.21A allows
for minor alterations to high impact doors and windows in buildings without
development approval.
For a development to be exempt from requiring a
development approval, it must comply with each general exemption criteria in
schedule 1, part 1.2
(general exemption criteria). Criterion 8 of the general
exemption criteria states that the development must comply with any other
criteria in part 1.3 of schedule 1 that
apply to the development (see
schedule 1, section 1.18). In other words, a development is exempt only if it
complies with the criteria in part 1.2 of schedule 1 and any applicable criteria
in part 1.3 of schedule 1.
For the purposes of criterion 8, new section
1.21A of schedule 1 sets out the criteria, in addition to the general exemption
criteria, that must be complied with for the installation, alteration, or
removal (the relevant change) of high impact doors and windows in buildings to
be exempt development.
The criteria (as set out in
new sections 1.21A(a)-(d)) are:
(a) the height of the building’s
finished floor level, or other trafficable surface, immediately adjacent
to the door or window is 1 metre or more above natural ground level;
(b)
the relevant change involves no more than the following:
(i) the replacement
of the door or window with either a door or a window without changing the width
of the opening in the wall;
(ii) an increase in the width of the door or
window by not more than 340mm;
(iii) an increase in the height of the door or
window by not more than 340mm;
(iv) a reduction in the height, or width, or
both, of the door or window;
(v) the installation of a wall instead of the
door or window or a part of the door or window;
Figure 1 at the end of
this statement illustrates how these parameters can be applied.
The
340mm dimension is based on the standard height of 4 courses of brickwork. A
standard brick is 76 mm high x 230 mm long x 110 mm wide. With a 10mm bed of
mortar, a single course of brickwork is 76mm + 10mm = 85mm approximately.
Therefore, 4 courses = 4 x 85mm = 340mm. Four courses are considered generally
to be an inconsequential amount by which a building’s position can change,
considering the matters covered by a development approval.
The limitations
imposed by section 1.21A(b) ensure that the relevant change can only be of a
minor scale.
(c) no part of the relevant change is less than 1.5 metres from a side
boundary or 3 metres from a rear boundary. Distance limitations from side and
rear boundaries ensure that large-scale alterations do not impose an undue
impact on the amenity of surrounding land, or land users.
(d) the designated
development complies with the applicable requirements in the general exemption
criteria, sections 1.10–1.18, of schedule 1.
Section 15 – Schedule 1, section 1.22(1) definition of excluded item, note – amends the note at the end of the definition of excluded item to insert a reference to section 1.21A which is inserted by this amending regulation (see above).
Section 16 – Schedule 1, sections 1.51(2)(c) and 1.52(1)(c), new note – inserts a new note in schedule 1, section 1.51(2)(c) and 1.52(1)(c) to include a reference to the definition of surface water. This is for clarification purposes.
Section 17 – Schedule 1, section 1.78 – corrects a typographical error by omitting the reference to section 1.72 and substituting the correct section number – section 1.77.
Section 18 – Schedule 1, section 1.102(2) – corrects a typographical error by substituting the word “or” with the word “for”.
Section 19 – Schedule 1, section 1.106 and 1.107 – omits schedule 1, sections 1.106 and 1.107 from the regulation. The omission of the sections is a consequence of their intended effect (tolerances) being made obsolete by this amending regulation. The allowable tolerances are now provided for, and expanded upon, by other provisions in the regulation, particularly schedule 1A (inserted by section 20 of this amending regulation (see below)).
Section 20 – New Schedule 1A –inserts new schedule
1A in the regulation. As explained above (see section 4 above), new section 20
of the regulation has been expanded to facilitate allowable tolerances which are
the prescribed limits by which certain development can contravene relevant
development approval or development regulation parameters. Schedule1A is
inserted because new section 20 requires the non compliance with a DA to be
within the parameters set by schedule1A.
Schedule 1A provides for certain
permitted variations to approved and exempt developments. It is intended that
the tolerances and other permitted variations mentioned in schedule 1A only
apply to development as it is being undertaken, or as it has been undertaken.
They do not apply to development at the design or plan-drawing stage.
For example, if plans forming part of a development application show a
dwelling sited 1.4m off a side boundary, and the relevant rule applicable to the
application required the dwelling to be not less than 1.5m off the boundary, the
application cannot be taken as complying with the rule, despite the horizontal
siting tolerance mentioned in schedule 1A. However, if a development approval
shows the dwelling being sited not less than 1.5m from the boundary and during
construction, the building’s brickwork inadvertently encroaches slightly
into the 1.5m setback, the dwelling can be taken as complying with the relevant
1.5m setback requirement of the DA provided the encroachment into the boundary
clearance zone is within the permitted tolerance for the siting of the dwelling
and it complies with the any other relevant parameters applicable under
schedule 1A.
exempt development means:
(a) a schedule 1 exempt
development; or
(b) a development that is exempt from requiring development
approval under the relevant development table.
Development tables are prescribed under the territory plan and are another method of prescribing development approval exemptions.
sch 1 exempt development means a development that is exempt from requiring development approval under section 20(1) of the regulation (see section 4 above).
New section 1A.10 relates to the allowable tolerances for the horizontal placement of buildings and structures. The section applies to the horizontal siting of a building or structure on a block that does not comply with the applicable siting criteria.
Applicable siting criteria are defined in subsection (3) as follows:
Applicable siting criteria, in relation to a point of a building or structure on a block means the criteria about the horizontal siting of the point on the block under:
(i) the approval, if the building or structure would be covered by a development approval other than for its horizontal siting on the block; or
(ii) schedule 1, part 1.3 (Exempt developments), if the building or structure would be a sch1 exempt development other than for its horizontal siting on the block; or
(iii) the development table, if the building or structure would be an exempt development under the relevant development table other than for its horizontal siting on the block.
If the section applies, the allowable horizontal tolerances are:
(a) If the applicable siting criteria allows or requires any point of a building or structure to be sited on or not more than 900mm horizontally from a boundary block:
(i) for a boundary fence – the point is sited so that the centre of the fence’s panelling is not more than 25mm horizontally from the boundary; and
(ii) in any other case, the point is sited wholly on the block and not more than 50mm horizontally from where the applicable siting criteria allow or require it to be sited; and
(b) if the applicable siting criteria allows or requires any point of a building to be sited more than 900mm horizontally from a boundary of a block:
(i) the point is sited wholly on the block and not more than 340mm
horizontally from where the applicable siting criteria allow or require it to be
sited; and
(c) compared to the approved development or exempt
development, the building or structure does not do either or both of the
following:
(i) increase the diversion or concentration of the flow of surface
water
(A) in a way that causes ponding; or
(B) onto other
land.
(ii) change the number of stories in the building or structure.
Figure 1 at the end of this statement illustrates how some of these tolerances can be applied.
Figure 2 at the end of this statement illustrates how the above-mentioned tolerances can be applied to boundary fences.
The above-mentioned 340mm tolerance coincides with the magnitude of vertical tolerances prescribed for other matters in schedule 1A.
The much smaller 50mm tolerance in section 1A.10(a)(ii) has been applied because a larger tolerance could produce adverse impacts on neighbouring properties, such as—
• increasing overlook into private space; or
• the creation of narrow strips of land between boundary fences and buildings which are too narrow to allow access for grounds or property maintenance.
Subsection 1A.10(3) specifies that, for this section, an easement means an easement registered, or shown on a certificate of title, under the Land Titles Act 1925; and on, a block, or a boundary of a block, includes above or below ground level for the block or boundary.
1A.11 Permitted variations - Height tolerances for buildings and structures
New section 1A.11 applies to the vertical siting of a building or structure on a block that does not comply with the applicable height criteria.
Subsection 1A.11(3) specifies the meaning of applicable height criteria.
Applicable height criteria, in relation to a point of a building or structure, means the criteria about the height of the point under:
(1) the approval, if the building or structure would be covered by a development approval other than for the height of the point; or
(2) schedule 1, part 1.3 (Exempt developments), if the building or structure would be a sch1 exempt development other than for the height of the point; or
(3) the development table, if the building or structure would be an exempt development under the relevant development table other than for the height of the point.
If the section applies, the allowable height tolerances for buildings and
structures are that the building or structure must be vertically sited so
that:
(a) for any point of the building or structure that the applicable
height criteria allows or requires to be sited at a particular
height:
(i) the point is sited wholly within the lease to which the point
relates and is not more than 340mm above or below where the applicable height
criteria allows or requires the point to be sited; but
(ii) if the point is
the sill of an exterior window, the sill is not more than 50mm closer to the
finished floor level immediately adjacent to the window’s sill;
and
(b) compared to the approved development or exempt development, the
building or structure does not do any of the following:
(i) increase the
diversion or concentration of the flow of surface water:
(A) in a way that
causes ponding; or
(B) onto other land.
(ii) reduce the accessibility of
the building or structure for people with disabilities;
(iii) change the
number of stories in the building or structure.
Figure 1 at the end of this statement illustrates how the tolerances can be applied.
Section1A.20 Other permitted variations to approved developments and
exempt developments
This section applies to the internal alteration
of a class 1 building and the installation, alteration or removal of an external
door or window. The Building Code of Australia defines the term class 1
building, (generally, they are houses). A designated development for the
internal alteration of a class1 building must be carried out in accordance with
schedule 1 (Exemptions from requirement for development approval) section
1.20.
A designated development for the installation, alteration or
removal of an external door or window in a building must be carried out in
accordance with schedule 1 (Exemptions from requirement for development
approval) section 1.21 or section 1.21A.
Figure 1 at the end of this
statement illustrates how this provision can be applied to the insertion of a
window.
Section 21 – Schedule 5, modification 5.1
– New sections 429A to 429F
For simplicity, this amending regulation replaces modification 5.1 of schedule 5 of the Act in its entirety. New sections 429A to 429E are new modifications to the Act. The modification in new section 429F was previously inserted by Planning and Development Regulation 2008 SL2008-2 sch 5 (as inserted by SL2008-8 s51). This modification was previously numbered section 429A but has been renumbered as section 429F because of the insertion of new sections 429A to 429E by this amending regulation, otherwise this modification is unchanged.
The modifications of the Act in schedule 5 of the regulation, existing and new, will all expire on 31 March 2010. The modifications to the Act will then cease to apply. Consideration will be given at a later date as to whether this and other provisions should persist beyond this period and whether an Act amendment should be proposed.
Section 429A Modification – s197 (Applications to amend development approvals) - New section 429A modifies the Act as permitted by section 429 of the Act by adding new paragraph (c) to section 197 of the Act.
The additional paragraph (c) is necessary because of the insertion of new section 198C into the Act by this amending regulation (see new section 429C below).
New section 197(1) provides that the section applies if:
(a) the authority
has given development approval for a development proposal; and
(b) the
development proposal changes so that it is not covered by the approval;
and
(c) section 198C (When development approvals do not require amendment)
does not apply to the changed development proposal.
The effect of new
section 197(1)(c) and new section 198C is summarised in the description of new
modification section 429C below.
Section 429B Modification –
s.198 (Deciding applications to amend development approvals) – New
section 429B modifies the Act as permitted by section 429 of the Act by
substituting a new section 198(4) in the Act. New section 198(4) is necessary
because of the insertion of new section 198B by this amending regulation (see
new section 429C below). New section 198(4) continues to provide that if public
notification of a proposed development is required then only the application for
the amendment need be publicly notified. The only change to 198(4) is to state
that 198(4) is not relevant if the requirement for public notification is
removed by the operation of new section 198B.
Section 429C
Modification – div 7.3.11 (Correction and amendment of development
approvals) – New section 429C modifies the Act as permitted by section
429 of the Act by inserting new sections 198A, 198B and 198C.
New section 198A specifies that, despite section 198(1)(b), the authority need not refer an application to amend a development approval to an entity if satisfied that the amendment does not affect any part of the development approval in relation to which the entity made a comment. This provision is consistent with the approach taken in existing section 145(4) with respect to changes to development applications.
New section 198B specifies that, despite section 198(1)(b), the authority need not publicly notify an application for the amendment of a development approval if satisfied that:
(a) no-one other than the applicant will be adversely affected by the amendment; and
(b) the environmental impact caused by the amendment will do no more than minimally increase the environmental impact for the development.
New section 198B is consistent with the approach taken in existing section 146(3) with respect to changes to development applications.
New section 198C specifies that the section applies if:
(a) the authority
has given development approval for a development application; and
(b) the
development is changed so that it is not covered by the approval.
Under new section 198C(2), a regulation may prescribe the circumstances in which a development in accordance with the changed development is taken to be in accordance with the development approval.
New section 198C applies in the situation where a development is authorised by a development approval but the actual development as built (or part built) turns out to exceed some of the dimension parameters in the development approval. If the built form exceeds the approval parameters but is still within the tolerance range specified in the regulation under 198C(2), the building is deemed to still comply with the requirements of the development approval and a new or amended approval is not required. Similarly, if the building includes a new feature outside the terms of the development approval (such as a new door or window) and the new feature is authorised under 198C(2), then again the building is deemed to comply with the approval. For example, if the building is a class 1 building (eg a house) and the internal arrangement of the house's walls, ceilings, kitchen and bathroom fitouts are varied so they are outside the terms of the development approval, the building is deemed to comply with the approval if the variation is authorised under 198C(2). The provision effectively permits the regulation to exempt specified matters from requiring a development approval amendment in the same way as the existing regulations exempt specified matters from requiring development approval.
Amended section 197, section 198 and new section 198C are intended to work as follows. Section 198C must be considered to determine whether an amendment to a development approval is necessary. If an amendment is necessary then amended section 197 gives the proponent the ability to apply for an amendment. Section 198 sets out the process for deciding such an application.
Section 429D Modification – s.203 (Development other than use lawful when begun) - New section 429D modifies section 203(1)(c) of the Act as permitted by section 429 of the Act. The new section 203(1)(c) adds the words “because of an amendment of this Act” to the end of section 203(1)(c). The addition of these words clarifies that the provision only applies if the Act changes but not if the development, of itself, changes so that it is no longer exempt development. As the provision stands, it could perhaps be interpreted as making lawful a development that started out being an exempt development under schedule 1 but, because of a change to the nature of the development during construction, it stops being exempt. This was not the intention of the provision and the modification clarifies the intent.
Section 429E Modification – s204 (Use as development lawful when
begun) - New section 429E modifies section 204(1)(c) of the Act as
permitted by section 429 of the Act. The new section 204(1)(c) adds the words
“because of an amendment of the development table or regulation” to
the end of s204(1)(c). The addition of these words clarifies that the provision
only applies if a development table or regulation changes but not if the
development, of itself, changes so that it is no longer exempt development. As
the provision stands, it could perhaps be interpreted as making lawful a
development that started out being an exempt development under schedule 1 but,
because of a change to the nature of the development during construction, it
stops being exempt. This was not the intention of the provision and the
modification clarifies the intent.
429F Modification—s 298A
(Application for extension of time to
commence or complete building
and development) – this section was previously numbered as section
429A but has been renumbered as section 429F to accommodate the insertion of
sections 429A-E above. The modification in section 429F was previously inserted
by Planning and Development Regulation 2008 SL2008-2 sch 5 (as inserted by
SL2008-8 s51). This provision is otherwise unchanged.
Section 22
– Schedule 5, new modification 5.7 New section 459A - inserts
modification [5.7] which inserts a new section 459A in the regulation (as
permitted by section 429 of the Act).
Existing sections 458 and 459 of
the Act set out transitional arrangements for the granting of a lease. Under
these sections, a lease may be granted under the Land (Planning and
Environment) Act 1991 (the repealed Act) where an application for a lease
was made but not decided before the commencement of the Act on
31 March 2008. There is some doubt as to whether these transitional
provisions cover the scenario where a contract for the sale of the lease was
entered into before 31 March 2008 but the lease is not granted until after
this date. This is because it is arguable that in this scenario the decision to
grant the lease was made before 31 March, that is, when the contract
for sale was entered into and as such, existing sections 458 and 459 do not
apply. New section 459A removes this doubt by inserting transitional provisions
that authorise the granting of leases in these cases.
Under the new
section 459A, the lease may be granted under the repealed Act (ie in the old
format with references to the repealed Act etc) or, if the potential lessee
agrees in writing, under the Act. Where a lease is granted under the repealed
Act using this provision, the lease (like other leases granted under the
repealed Act) is taken to have been granted under the Act and it can still be
registered at the Land Titles Office.
This provision has retrospective
application in that it applies from 31 March 2008. For the amendment to apply to
all relevant leases, it needs to be operational from 31 March 2008.
Section 76 of the Legislation Act 2001 - Non–prejudicial
provision may commence retrospectively - prohibits statutory instruments
from including retrospective provisions that are prejudicial unless specifically
authorised by the relevant Act. New section 459A does not contravene this
requirement because it is non –prejudicial. The effect of new section
459A is to confirm that the:
• authority or land development agency is
able to meet obligations for the grant of leases under contracts for sale
entered into prior to 31 March 2008;
• the potential lessee has the
right to elect to have the lease granted in terms consistent with granting under
the repealed Act or in terms consistent with granting under the Act;
and
• relevant leases acquire the same status and protections afforded
other leases covered by the Act and can be registered at the Land Titles Office
(consistent with the underlying approach in existing transitional provisions in
Part 15.6 of the Act).
These effects are not prejudicial but operate to
the benefit of the parties concerned.
Section 23 - Schedule 5, new
modification 5.8 New section 459B - inserts modification [5.8] which
inserts a new section 459B in the regulation (as permitted by section 429 of the
Act).
Section 291 of the repealed Act provided for the conversion of
Commonwealth leases. This section was applied in circumstances where under
section 27(1) of the Australian Capital Territory (Planning and Land
Management) Act 1988 (Cwlth), (the PALM Act), a declaration classifying land
as National Land had been rescinded, revoked, amended or varied. Consequently,
land that had been National Land ceased to be National Land.
The PALM
Act, section 27, states that the Minister may declare land to be National Land
only where it is, or is intended to be, used by or on behalf of the
Commonwealth. In this section, the Minister may rescind, revoke, amend or vary
land that is National Land. Furthermore, section 28 of the PALM Act states that
at any time when any land in the Territory is not National Land, that land is
Territory Land for the purposes of the PALM Act. In the event that National
Land becomes Territory Land, section 291 of the repealed Act allowed for a lease
that was in force immediately before the declaration to be taken as having been
granted under the repealed Act. In this way, the continuity of these leases and
their continued management under Territory legislation was assured.
The
Act does not have a provision similar to section 291 of the repealed Act. The
new section 459B corrects this omission.
Section 24 – Schedule 5
– renumbers schedule 5 as schedule 20. The reason for changing
the number of the schedule is to ensure that a clear record of transitional
provisions is retained in the endnotes to the regulations. Once schedule 5
expires, there is a real possibility of the schedule’s number being
re-used in the future and the reference to the modification of the Act in the
endnotes will be lost.
Section 25 – Dictionary, note 3,
new dot point – includes the term “exempt” in Note 3 of
the Dictionary for clarification purposes.
Section 26 –
Dictionary, new definition of approved development –
inserts a definition of approved development for the purposes of schedule
1A which is inserted by section 20 of this amending regulation (See
above).
Section 27– Dictionary – definition
of designated development –inserts a definition of
designated development for the purposes of schedule 1 and new schedule1A.
The definition was previously in schedule 1 only. However, the term now applies
beyond schedule 1 because of this amending regulation. As a result, the
definition of the term has been moved to the regulation’s Dictionary.
Section 28 – Dictionary – new definition of exempt
development – inserts a new definition of exempt
development for the purposes of schedule1A which is inserted by section 20
of this amending regulation (see above).
Section 29 –
Dictionary, definitions of finished floor level and general
exemption criteria – inserts a definition of finished
floor level and general exemption criteria for the purposes of
schedule 1 and new schedule1A. The definitions were previously in schedule 1
only. However, the terms now apply beyond schedule 1 because of this amending
regulation. As a result, the definitions of the terms have been moved to the
regulation’s Dictionary.
Section 30 – Dictionary, new
definition of sch 1 exempt development – inserts a new
definition of sch 1 exempt development for the purposes of schedule 1A
which is inserted by section 20 of this amending regulation (see
above).
Section 31 – Dictionary, definition of surface
water –– inserts a definition of surface water
for the purposes of schedule 1 and new schedule1A. The definition was
previously in schedule 1 only. However, the term now applies beyond schedule 1
because of this amending regulation. As a result, the definition of the term has
been moved to the regulation’s Dictionary.
CERTAIN LOW IMPACT WINDOWS OR DOORS—
• MUST BE
LOW TO GROUND AND AWAY FROM BOUNDARIES;
• MAY BE ADDED IF MAXIMUM SPAN
IS 2m;
• MAY BE REPOSITIONED; ALTERED OR REMOVED BUT IF SPAN MORE THAN
2m, ONLY WITHIN 340mm
TOLERANCE
BOUNDARY
± 340mm
HORIZONTAL
LOCATION
TOLERANCE
(OR
± 50mm IF
WITHIN 900mm
OF BOUNDARY)
NATURAL GROUND LEVEL
MINIMUM SETBACK FOR LOW IMPACT WINDOW OR DOOR: 3m
FROM REAR BOUNDARY, OR 1.5m FROM SIDE
BOUNDARY
FLOOR LEVEL
CERTAIN
HIGH IMPACT WINDOWS OR DOORS CAN BE—
• REPOSITIONED OR
ENLARGED WITHIN 340mm TOLERANCE; OR
• REDUCED IN SIZE OR REMOVED,
EXCEPT HEIGHT OF SILL ABOVE ADJACENT FLOOR CANNOT BE REDUCED MORE THAN
50mm
ANY WINDOW OR DOOR MAY BE REMOVED
WINDOW OR
DOOR ENLARGED OR REPOSITIONED WITH 340mm TOLERANCE
2m MAX SPAN
1m MAXIMUM
FLOOR HEIGHT ABOVE NATURAL GROUND FOR LOW
IMPACT WINDOW OR DOOR
340mm MAX
340mm MAX
50mm MAX SILL LOWERED
RELATIVE TO FLOOR
CERTAIN BOUNDARY FENCES MAY HAVE THE CENTRE OF THEIR PANELS WITHIN 25mm
OF THE BOUNDARY
± 25mm
Note: other parameters
apply additionally to those stated in fig 1. The tolerances and allowances do
not apply to building approvals under the Building Act
2004.
Figure 1—illustration of certain development
approval construction tolerance parameters and allowable variations to approved
developments
INTERNAL LAYOUT OF CLASS 1 BUILDING MAY BE
ALTERED
±340mm VERTICAL HEIGHT TOLERANCE
post
rail
panelling (palings)
25
25
FENCE PLAN VIEW
Permitted DA exemption, mirror-case also
permitted
Zone where boundary must
occur
centre of panelling
Figure
2—illustration of certain development approval construction tolerance
parameters for certain fences.
Note: other parameters apply
additionally to those stated in fig 2. The tolerances do not apply to building
approvals under the Building Act 2004.
Post and rail paling
fence shown, certain other fences also permitted.