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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 5) (NO 15 OF 2009)
2009
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Planning and Development
Amendment Regulation 2009 (No
5)
SL2009-15
EXPLANATORY
STATEMENT
Circulated by authority of the
Minister for Planning
Mr
Andrew Barr MLA
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (No
5)
EXPLANATORY STATEMENT
Overview
The changes proposed to the Planning and
Development Regulation 2008 (the regulation) by this amending regulation
extends reforms implemented through the planning system reform project. The
main aim of the reform project was to improve timeliness, transparency and
efficiency in the planning processes.
One of the ways the Planning and
Development Act 2007 (the Act) achieves this aim is by allowing
straightforward developments to be exempt from requiring a development approval
(DA). Under the Act, section 133 and 135, the Planning and Development
Regulation 2008 (the regulation) may prescribe those things that do not
require development approval (refer section 20, schedule 1 and schedule 1A).
Development that does not require development approval is DA exempt development.
Section 20 and Schedules 1 and 1A of the regulation exempt specified development
from requiring a development approval.
The types of development already
prescribed in schedule 1 include such things as single dwellings on new
residential land and small structures such as sheds, garages and pergolas. In
the majority, the range of things prescribed in schedule 1 has now been
successfully used within the community since 31 March 2008. During this
time the ACT Planning and Land Authority (the authority) has been monitoring the
performance of the exempt development process, in particular, exemptions for
single dwellings on new residential land. There have been no significant
compliance issues identified around the use of the exemption for single
dwellings on new residential land. The Land Regulation and Audit Unit of the
authority audited 57 of 803 exempt single residential dwellings that were
registered for building approval and found no significant issues of concern in
relation to compliance with the Territory Plan code.
The amending
regulation seeks to expand the current exemption that applies to development
proposals for single dwellings in new residential estates (schedule 1, section
1.100) to development proposals for single dwellings in any residential zone
providing the dwelling complies with the relevant Code and there would only be
one dwelling on the block. The amending regulation therefore extends the same
rights currently enjoyed by people building a single dwelling on new residential
land to other members of the community who live in established residential
zones.
The exemption will apply to residential zones only, that is, the
exemption will not apply to Community Facility Zones, Commercial Zones,
Non-urban Zones (eg Rural Zone), etc. The Territory Plan sets out zones and
precincts in the ACT, objectives and development tables applying to each zone as
well as a series of general, development and precinct codes.
A
development proposal, for a single dwelling, will still need to comply with the
relevant rules of the relevant Code and precinct code in the Territory Plan and
have building approval under the Building Act 2004. The relevant rules in
the codes are the “black and white” quantitative rules and do not
include the qualitative merit criteria in the relevant Code.
Clauses 10
and 11 of the amending regulation clarify the development approval exemptions in
relation to the demolition of single dwellings and buildings and structures.
The existing exemption in schedule 1, section 1.101 Building and
structures – demolition provides for the demolition of a building or
structure if the building or structure would be exempt development, if built,
and provided the demolition meets the relevant rules in the relevant precinct
code and the relevant rules in the Residential Zones Single Dwelling House
Development Code.
Clause 10 broadens the exemption to include the
demolition of the whole or part of a single dwelling in all residential zones,
irrespective of whether or not that dwelling, if built, would be exempt. Because
of the definition of dwelling in section 5 of the regulation, the
demolition of an existing class 10a building associated with the single
dwelling is also included in the exemption.
Pursuant to clause 11, a
development approval exemption will still apply to the demolition of development
that, if built, would be exempt development.
The exemption for the
demolition of the single dwelling and any associated class 10a buildings
is not dependant on both the dwelling and the associated buildings being
demolished at the same time. Both can be demolished at the same time, or the
dwelling can be demolished and then the associated building or vice versa.
However, this is with the proviso that if a dwelling is demolished well before
the class 10a building, there is a risk that the class 10a building may no
longer be considered associated with the dwelling and the exemption for
the demolition of the class 10a building may be lost.
Dwelling is defined for the regulation in section 5 as
meaning a class 1 building, or a self-contained part of a class 2 building,
that—
(a) means a class 1 building, or self contained part of a
class 2 building, that-
(i) includes the following that are accessible
from within the building, or the self-contained part of the building:
(A) not
more than 2 kitchens;
(B) at least 1 bath or shower;
(C) at least 1 toilet
pan; and
(ii) does not have access from another building that is either a
class 1 building or the self-contained part of a class 2 building;
and
(b) includes any ancillary parts of the building and any class 10a
buildings associated with the building.
The amending regulation allows the following scenarios:
(1) The
building or altering of a single dwelling which is compliant with the relevant
rules of the relevant Code (Code compliant) without development approval in all
residential zones. Dwellings which are not Code compliant can still be built but
require either development approval or an exemption declaration depending on
what features are not Code compliant. See clause 7 & 9.
Note: The
relevant rules of the relevant Code are the “black and white”
quantitative rules and do not include the qualitative merit criteria in the
relevant Code.
(2) The demolition of a single dwelling in all residential
zones without development approval. See clause 10.
(3) The demolition of part
of an existing dwelling and an extension to the dwelling without development
approval provided the extension is compliant with the relevant rules in the
relevant Code (Code compliant). Extensions which are not Code compliant may
still be carried out but are subject to development approval. The exemption
still applies to an alteration of an existing dwelling even though part of the
existing building is not Code compliant provided that existing part has previous
development approval. See clause 7 and 10.
(4) The demolition of class 10a
buildings that are associated with a single dwelling without development
approval. In this situation, the requirement that the class 10a building being
demolished must be exempt development, if built, does not apply. This is because
the definition of dwelling includes associated class10a buildings. See clause
10.
(5) The demolition of a building/structure without development approval
if the building/structure would be exempt development, if built. For example, a
garage which has parameters which would make its building exempt from
development approval can be demolished without development approval. See clause
11.
Clauses 1 – Name of Regulation –states the name of the
regulation, which is the Planning and Development Amendment Regulation 2009
(No 5).
Clause 2 – Commencement –states that the
regulation commences the day after notification.
Clause 3
– Legislation amended – states that the regulation amends the
Planning and Development Regulation 2008.
Clause 4 –
Section 20 (6) (c) – substitutes new section 20(6) (c).
The
new section 20(6) (c) omits the words “(single dwellings-new residential
land) from section 20(6) (c) and substitutes the words “(compliant single
dwellings)” consequent to the amendment of schedule 1, section 1.100 by
this amending regulation – see clause 7 below.
Section 20 and
schedules 1 and 1A of the regulation exempt specified development from requiring
a development approval. Subsections 20 (3) and 20 (4) permit a DA exempt
development to be changed in specified ways without risk to its DA exempt
status, i.e. without requiring development approval. (Note: Subsections (2) and
(3) do not limit the operation of other provisions that permit a subsequent DA
exempt change being made after the development is complete). Subsection 20 (5)
applies to development that combines notionally or potentially separable
components, each of which, if constructed separately, would be DA exempt but
when constructed together as a composite development are not DA exempt.
Subsection 20 (5) provides that such a composite development is DA
exempt.
Clause 5 – Section 35 (4) (c) — clause 5 omits
the words “(single dwellings-new residential land)” from section 35
(4) (c) and substitutes the words “(compliant single dwellings)”
consequent to the amendment of schedule 1, section 1.100 by this amending
regulation – see clause 7 below.
Subsection 35 (4) was made under
section 198C of the Act. Section 198C provides for the regulation to specify
changes to development that are deemed to be consistent with the relevant
development approval. Section 198C of the Act was inserted into the Act by a
regulation modification, (section 20.1 of schedule 20 to the regulation) and as
such, will expire on 31 March 2010.
Subsections 35(2) and 35(3) apply
to development that has development approval under the Act. These sections
permit (subject to subsection 35(4)) specified changes to a development prior to
completion of construction even if the changes are not consistent with the
relevant development approval. Prior to the insertion of section 35 (2) and (3),
such changes required an application under the Act (section 197) for an
amendment to the relevant development approval.
Subsection 35 (4)
provides that subsections 35 (2) and (3) do not apply if the result would be to
construct a building that would not comply with DA exemption requirements in
schedule 1 that limit the number of DA exempt structures near lease boundaries
and require there to be no more than one single dwelling on the relevant block
of land.
Clause 6 – Schedule 1, section 1.100 heading
—substitutes a new heading for section 1.100 consequent to the change
in the subject matter of schedule 1, section 1.100 to include compliant single
dwellings in all residential zones not just new residential estates by this
amending regulation - see clause 7 below.
Clause 7 – Schedule
1, section 1.100 (1) —substitutes a new subsection 1.100 (1) in
schedule 1 to exempt the building or altering of a single dwelling on a block
from requiring development approval if, amongst other things, the dwelling will
be the only dwelling on the block, whether or not another dwelling has
previously been built on the block. This extends the existing exemption in
section 1.100 to include the building or altering of a single dwelling not just
in new residential estates but also where there has previously been a dwelling
on the site as is usually the case in established residential zones in the ACT.
The exemption only applies to residential zones. It does not apply to Community
Facility Zones, Commercial Zones, Non- urban Zones, etc
Clause 7 also
amends section 1.100(1) (c) by making it apply to an alteration as well as the
building of a single dwelling. It requires that the dwelling, as built, or the
alteration, as built, needs to comply with the prescribed general exemption
criteria (see clause 8), the relevant rules in any relevant precinct code and
the relevant rules in the Residential Zones - Single Dwelling House Development
Code to the extent that they are not inconsistent with each other.
Clause 7 also amends section 1.100(1) to insert paragraph (d) which
states that the dwelling or the alteration will be in a residential zone.
Other exemptions, otherwise provided for in schedule 1, may still apply
to the building or structure. For example, building a dwelling and garage
together may not meet the single dwelling Code but the dwelling, by itself, may
meet the Code and the garage, by itself, may meet an exemption parameter in
schedule 1 (eg section 1.45).
Clause 8 – Schedule 1, section
1.100 (4) new definition of prescribed general exemption criteria
– inserts a new definition for prescribed general exemption criteria
because of the use of the term in clause 7 of this amending regulation. This
clarifies that only certain of the general exemption criteria need to be met,
amongst other things, for the exemptions in clause 7 (section 1.100) to apply.
The general exemption criteria are set out in sections 1.10 to 1.18 of schedule
1.
Clause 9 – Schedule 1, section 1.100A — substitutes
a new section 1.100A in schedule 1 to exempt the building of a single dwelling
or alteration of the dwelling on a residential block from requiring development
approval if the building of the dwelling or alteration would be exempt under
s1.100 notwithstanding the actual construction would result in a minor breach of
the relevant DA exemption rules.
Section 1.100A provides that the
building or altering of a single dwelling on a block can remain DA exempt
notwithstanding a minor non-compliance with the defined rules. For this
section 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.
The section applies only if the breach of the defined rules
involves an encroachment in one or more of the following ways, beyond the front,
side or rear setback or beyond the building envelope that applies or into the
required minimum private open space.
The section provides that the
proponent for the proposed dwelling or proposed alteration can on application to
the Authority seek to have the encroachment, of the defined rules,
covered by an exemption declaration. An “exemption declaration” has
the effect of declaring that a specified noncompliance with DA exemption
requirements does not cause the construction or altering of the single dwelling
to cease to be DA exempt. The exemption declaration role is limited only to the
subject of the declaration.
An exemption declaration, if granted, must
state the distances that the proposed dwelling or proposed alteration is allowed
to breach the defined rules by. The section only applies if the non-compliance
is minor, does not adversely affect anyone other than the lessee and does no
more than minimal environmental harm.
Clause 10 – Schedule
1, section 1.100B – inserts new section 1.100B Single dwellings
– demolition. New section 1.100B provides that the demolition
of a single dwelling, or part of a single dwelling, is exempt development
provided that it complies with section 1.14 (Criterion 4 – heritage and
tree protection). This means that the proposed demolition can not contravene
the Tree Protection Act 2005 or the Heritage Act 2004.
The
provision provides that a single dwelling, or part thereof, can be demolished
without a DA even if the dwelling, or part, if built, would not be exempt
development (Contrast with section 1.101 inserted by clause 11 below which
retains this requirement for a building or structure, or part thereof).
Because of the definition of dwelling in section 5 of the
regulation, the demolition of an existing class 10a building associated with the
single dwelling is also included in the exemption. However, if a dwelling is
demolished well before the class 10a building, there is a risk that the class
10a building may no longer be considered associated with the dwelling and the
exemption for the demolition of the class 10a building may be lost.
Any
relevant processes under the Building Act 2004 still apply (for example,
sections 70A and 71).
Clause 11 – Schedule 1, section 1.101
– substitutes a new section 1.101 in schedule 1 so as to include as
exempt development, the demolition of part of a building or structure and to
remove the requirements that the demolition comply with relevant rules in the
relevant Code and the applicable general exemption criteria.
The
exemption in Section 1.101 Building and structures – demolition now
permits the demolition of a building or structure, or part of a building or
structure, if the building or structure, or part, would be exempt development,
if built.
The amendment is consequential on the insertion of new section
1.100B by clause 10 above. The exemptions for demolition of a single dwelling
(or part thereof) and exempt development are dealt with separately for reasons
of clarity.