PLANNING AND DEVELOPMENT LEGISLATION AMENDMENT BILL 2008

An Act to amend the law relating to planning and development, and for related purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Planning and Development Legislation Amendment Act 2008.

This Act commences on the commencement of the Planning and Development Act 2007, section 46.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

(f) varying a lease relating to the land (other than a variation that reduces the rent payable to a nominal rent);

(i) the surrender of 1 or more leases held by the same lessee, and the grant of new leases to the lessee to subdivide the parcels of land in the surrendered leases; and

(ii) the subdivision of land under the Unit Titles Act 2001; and

7 What are technical amendments of territory plan?

New section 87 (ca)

(ca) a variation to change the boundary of a zone or overlay under section 96A (Rezoning—boundary changes);

(b) any limited consultation needed for the variation has taken place.

(2) The planning and land authority may vary the territory plan under section 89 to change the boundary of a future urban area if the change is consistent with the structure plan for the area.

(3) However, the planning and land authority must not vary the territory plan under section 89 to change the boundary of a future urban area if part of the boundary proposed to be changed is aligned with the boundary of an existing leasehold.

(1) The planning and land authority may vary the territory plan under section 89 (Making technical amendments) to change the boundary of a zone or overlay if the change is consistent with—

(2) However, the planning and land authority must not vary the territory plan under section 89 to change the boundary of the zone if part of the boundary proposed to be changed is aligned with the boundary of an existing leasehold.

1 boundary change consistent with more detailed survey work that reveals copse of trees further away from boundary than intended

2 boundary change to align boundary to boundaries of nearby, recently-created leases

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

12 Applications for development approval in relation to use for otherwise prohibited development

Section 137 (2) (b)

(b) the proposal is taken not to be for a prohibited development; and

(1) For this chapter, the planning and land authority publicly notifies a development application if—

(a) for an application for a development proposal in the merit track that is prescribed by regulation—the authority notifies the application in the manner prescribed under subsection (2); or

(b) for any other application for a development proposal—the authority notifies the application under—

(ii) if the development proposal is, or includes, a lease variation—section 154 (if applicable).

Note 1 Only developments to which the merit track and impact track applies are required to be publicly notified (see s 121 and s 130). Also, the planning and land authority must re-notify some amended development applications (see s 146).

Note 2 An entity other than an applicant may apply for review of a decision to approve a development application in the merit track only if the application is required to be notified under section 153 and section 155 (see sch 1, item 4).

(2) For an application prescribed under subsection (1) (a), the planning and land authority may, by regulation, prescribe either of the following ways of notifying the application:

(a) under section 155 (Major public notification) and, if applicable, section 154 (Public notice to registered interest holders);

(b) under section 153 (Public notice to adjoining premises) and, if the development proposal is, or includes, a lease variation—section 154 (if applicable).

165A Lease to be varied to give effect to development approval

(a) the planning and land authority or the Minister approves a development application under section 162; and

(2) The planning and land authority must vary the lease in accordance with the terms of the approval.

Note Section 179 and s 180 set out when development approvals requiring lease variations take effect.

16 Extension of time for further information—further information sufficient

Section 166 (1) (b)

(b) the authority decides to give the applicant the request notice not later than 10 working days after the day the application is lodged; and

(ba) the notice is given to the applicant as soon as possible after the authority decides to give the notice; and

17 When is a s 125-related EIS completed?

Section 209A (1) (b) (i) and (ii)

(i) the Minister has not decided, within the 15-day period mentioned in section 228 (1), to establish an inquiry panel to inquire about the EIS; and

(ii) the Public Health Act Minister has not decided, within the 15-day period mentioned in the Public Health Act 1997, section 134 (4), that an inquiry panel to inquire about the EIS must be established; or

(A) if the Minister gave the authority notice in relation to the EIS under section 226—the Public Health Act Minister has not decided, within the 15-day period mentioned in the Public Health Act 1997, section 134 (4), that an inquiry panel to inquire about the EIS must be established; or

(B) in any other case—the Minister has not decided, within the 15-day period mentioned in section 228 (1), to establish an inquiry panel to inquire about the EIS; or

19 Definitions—ch 9

Section 234, new definition of single dwelling house lease

single dwelling house lease means a lease granted under section 240 (1) (cb).

Note 1 Not everyone may be eligible to be granted a lease under this subsection (see s 239).

Note 2 Section 240, s 241, s 242 and s 243 also apply to grants under par (d).

The planning and land authority may restrict the people eligible for the grant of a lease under section 238 by stating, in the relevant notice of auction, tender, ballot or direct sale, that a class of people is eligible or ineligible for the grant of a lease under the auction, tender, ballot or direct sale.

22 Restriction on direct sale by authority

New section 240 (1) (ca) and (cb)

(cb) the grant is of a residential lease for a single dwelling house; or

(1) The planning and land authority must, not later than 5 working days after the end of a quarter, give the Minister—

(i) the number of single dwelling house leases granted during the quarter; and

(ii) any other information prescribed by regulation for single dwelling house leases; and

(b) a statement that sets out the prescribed information for each other direct sale lease granted during the quarter; and

(2) The Minister must present the documents given under subsection (1) to the Legislative Assembly not later than 5 sitting days after the day the Minister receives the information.

(3) To remove any doubt, the validity of a single dwelling house lease or other direct sale lease is not affected by a failure to comply with subsection (1) or (2) in relation to the lease.

other direct sale lease means a lease granted by direct sale, other than a single dwelling house lease.

prescribed information, for an other direct sale lease, means—

(b) if the lease was granted with the approval of the Executive under section 240 (2)—the reason for granting the lease with the approval of the Executive.

Note While the use of a residential lease for a home business is authorised, the use of the land for a home business is not exempt from requiring development approval unless the use is an exempt development (see div 7.2.6).

28 Restrictions on dealings with certain leases

Section 251 (1) (c)

(ii) a single dwelling house lease, other than a single dwelling house lease prescribed by regulation;

(2A) However, a regulation may exempt a lease from this section, whether generally or in relation to a particular dealing.

(3A) If this section applies to a lease, the planning and land authority must tell the registrar-general that it applies.

Note If the planning and land authority tells the registrar-general that this section applies to a lease, the registrar-general must include a memorial in the register to that effect (see Land Titles Act 1925, s 72D).

(3B) The application of this section to a lease is not affected by—

(a) failure by the planning and land authority to comply with subsection (3A); or

(a) failure by the registrar-general to comply with the Land Titles Act 1925, section 72D.

(1) This section applies to a lease that is included in a class of leases prescribed by regulation.

(2) The lessee may apply to the planning and land authority for a variation of the lease to reduce the rent payable to a nominal rent.

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

(1) Within the period prescribed by regulation after the day the planning and land authority receives an application by a lessee under section 272A, the authority must—

(a) decide to vary the lease to reduce the rent payable to nominal rent; or

(b) if subsection (2) prevents the authority from varying the lease—refuse to vary the lease.

(2) The planning and land authority must not vary the lease to reduce the rent payable to a nominal rent unless—

(a) all amounts payable to the Territory up to the day of variation of the lease for rates and land tax levied in relation to the land comprised in the lease have been paid; and

(b) the provisions of the lease requiring the lessee to develop the land comprised in the lease have been complied with up to the day of the variation; and

(c) the lessee has paid the Territory an amount decided by the planning and land authority by reference to any policy direction made under section 272C.

(3) The planning and development authority must give written notice of the decision on the application to the applicant.

Note If the notice is given to a person who may apply to the AAT for review of the decision to which it relates, the notice must comply with the requirements of the code of practice in force under the Administrative Appeals Tribunal Act 1989, s 25B (1) (see s 408 (3)).

(1) The Minister may make policy directions for section 272B (2) (c).

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(a) an application has been made under section 272A (Application for rent payout lease variation); and

(2) The planning and land may decide to vary the lease to reduce the rent payable to nominal rent under section 272B despite the ending of the time for deciding the application.

(3) To remove any doubt, if the planning and land authority has not decided an application under section 272B, the authority is taken to have decided to refuse the application under the Administrative Appeals Tribunal Act 1989, section 24 (6).

(1) This section applies if the planning and land authority decides to vary a lease under section 272B to reduce the rent payable to a nominal rent.

(2) The planning and land authority must vary the lease in accordance with the decision.

(3) The lease as varied must provide that the lessee is to pay a rent of 5 cents each year if and when that rent is demanded.

(ii) any earthworks, planting or other work that affects the landscape of the land that is reasonably undertaken for rural purposes.

298A Application for extension of time to commence or complete building and development

(1) This section applies if a lease includes a building and development provision requiring the commencement or completion of building or development to take place within a stated time.

Note The planning and land authority may make a controlled activity order under div 11.3.2 (Controlled activity orders on authority’s initiative) or terminate a lease under s 382 (Termination of leases) if a lessee fails to comply with a building and development provision.

(2) The lessee may, at any time before or after the stated time has ended, apply to the planning and land authority to extend the stated time under section 298B.

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

(a) the most recent assessment notice for rates for the land; and

(4) The required fee is not affected by the number of stated times under the lease for which an extension is sought.

(b) if a lower figure is prescribed by regulation—the figure prescribed.

Note Power to make a statutory instrument (including a regulation) includes power to make different provision for different categories (see Legislation Act, s 48).

B is the amount of rates payable in relation to the land under the Rates Act 2004, for the financial year when the application is made.

Note The required fee may be waived under the Financial Management Act 1996, section 131.

298B Extension of time to commence or complete building and development

(1) This section applies to an application for extension of a stated time under section 298A.

(3) The planning and land authority may approve the extension only if satisfied on reasonable grounds that the extension for the period sought would not cause an unacceptable delay to another development or land release.

(4) An approval may be given for a shorter extension than that sought by the application.

(5) However, the planning and land authority must not approve an extension—

(b) for a period that, together with any earlier extension, would total more than the prescribed period.

(b) if another period is prescribed by regulation—the other period.

Note 1 Power to make a statutory instrument (including a regulation) includes power to make different provision for different categories (see Legislation Act, s 48), and power for the stated entity to make provision about a matter or any aspect of a matter (see Legislation Act, s 52).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) An authorised person may enter premises where rectification work is to be carried out—

Note An occupier may consent on being asked for consent by an inspector, or after being given an intention to enter notice under s 391B.

(2) An authorised person who enters premises may remain at, and re-enter, the premises to carry out the rectification work during business hours, or at another time authorised by a rectification work order, whether or not the inspector remains at the premises.

Note 2 If entry is made under a rectification work order, see s 402G for re-entry to the premises.

(a) an authorised person must not enter premises for the first time unless accompanied by an inspector; and

(b) if the authorised person enters or re-enters the premises with consent under subsection (1) (a), the person must leave the premises if an occupier withdraws consent to the person being on the premises.

(1) An authorised person does not incur civil liability for rectification work carried out in accordance with the directions of an inspector.

(2) A civil liability that would, apart from this section, attach to the authorised person attaches instead to the Territory.

(a) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment); or

(b) for entry without an authorised person—at any time, enter premises with the occupier’s consent; or

Note An occupier may consent on being asked for consent by an inspector, or after being given an intention to enter notice under s 391B.

(d) enter premises with an authorised person in accordance with a rectification work order; or

(e) enter premises in accordance with a search warrant or monitoring warrant.

(2) However, subsection (1) (a) does not authorise entry into a part of premises that is being used only for residential purposes.

(3) An inspector may, without the consent of the occupier of premises, enter land around the premises to—

(a) an inspector may enter premises under subsection (1) without payment of an entry fee or other charge; and

(b) for subsection (3), it does not matter whether someone is on the premises or not when the inspector enters.

(ii) that the occupier may refuse consent to enter the premises; and

(iii) that the occupier may withdraw consent to remain at the premises.

(ii) that the occupier may refuse consent to enter the premises; and

(iii) that the occupier may withdraw consent to remain at the premises; and

(4) A court must find that the occupier did not consent to the inspector entering or remaining at the premises under this part if—

(a) the question arises in a proceeding in the court whether the occupier consented; and

(b) an acknowledgment of consent is not produced in evidence; and

(1) This section applies to an inspector seeking the consent of an occupier to enter premises under section 389 (1) (c).

Note The inspector may, without consent, enter land around the premises to ask for consent to enter the premises (see s 389 (3)).

(i) the planning and land authority gave a direction for rectification work to be done at the premises; and

(iii) the rectification work has not been carried out in accordance with the notice; and

(iv) a person has been authorised to carry out the rectification work; and

(v) entry is sought to allow the authorised person to carry out the rectification work; and

(vii) the inspector may, but need not, remain at the premises to give directions to the authorised person; and

(viii) the authorised person may return during business hours as required to complete the work; and

(3) If the occupier consents, the inspector must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)—

(i) the planning and land authority gave a direction for rectification work to be done at the premises; and

(iii) the rectification work has not been carried out in accordance with the notice; and

(iv) a person has been authorised to carry out the rectification work; and

(v) entry is sought to allow the authorised person to carry out the rectification work; and

(vii) the inspector may, but need not, remain at the premises to give directions to the authorised person; and

(viii) the authorised person may return during business hours as required to complete the work; and

(x) the occupier may withdraw consent to remain at the premises; and

(4) If the occupier signs an acknowledgment of consent, the inspector must immediately give a copy to the occupier.

(5) A court must find that the occupier did not consent to the inspector entering or remaining at the premises under this part if—

(a) the question arises in a proceeding in the court whether the occupier consented; and

(b) an acknowledgment of consent is not produced in evidence; and

(1) This section applies to an inspector proposing to enter premises—

(a) under section 389 (1) (b) to check whether a controlled activity has happened, or is happening, in relation to the premises; or

(b) under section 389 (1) (b) to check whether 1 or more of the following in relation to the premises is being complied with; or

(ii) a direction under section 366 to carry out rectification work;

(2) The inspector may give an occupier of the premises written notice (an intention to enter notice) of the inspector’s intention to enter the premises.

(a) must be given to the occupier at least 2 working days before the proposed entry; and

(b) may be given to the occupier without first asking for the occupier’s consent to enter the premises.

(4) An intention to enter notice, for a proposed entry mentioned in subsection (1) (a) or (b), must state—

(d) that the occupier may withdraw consent for the inspector or authorised person to remain at the premises.

(5) An intention to enter notice, for a proposed entry mentioned in subsection (1) (c), must state—

(i) the planning and land authority gave a direction for rectification work to be done at the premises; and

(iii) the rectification work has not been carried out in accordance with the notice; and

(iv) a person has been authorised to carry out the rectification work; and

(v) the inspector proposes to enter the premises with an authorised person to allow the authorised person to carry out the rectification work; and

(vi) the inspector may, but need not, remain at the premises to give directions to the authorised person; and

(vii) the occupier may refuse consent for the inspector or authorised person to enter the premises; and

(viii) the occupier may withdraw consent for the inspector or authorised person to remain at the premises; and

(b) when, during business hours, the work is proposed to be carried out.

(6) Before entering the premises in accordance with the intention to enter notice, the inspector must—

(i) the inspector proposes to enter the premises with an authorised person to allow the authorised person to carry out the rectification work to which the notice relates; or

(ii) the inspector proposes to enter the premises to check whether a controlled activity has happened, or is happening; or

(iii) the inspector intends to enter the premises to check compliance in accordance with the notice; and

(b) tell the occupier that, if the occupier does not consent to the inspector or authorised person entering, or remaining at, the premises, an application may be made to a court for a rectification work order or a monitoring warrant; and

(7) If an inspector gives the occupier an intention to enter notice, the inspector must ask the occupier to sign a written acknowledgment that the occupier was told that—

(i) proposes to enter the premises with an authorised person to allow the authorised person to carry out the rectification work to which the notice relates; or

(ii) proposes to enter the premises to check whether a controlled activity has happened, or is happening; or

(iii) intends to enter the premises to check compliance in accordance with the notice; and

(b) if the occupier does not consent to the inspector or authorised person entering, or remaining at, the premises, an application may be made to a court for a rectification work order or a monitoring warrant.

(8) If the occupier signs an acknowledgment under subsection (7), the inspector must immediately give a copy to the occupier.

(1) An inspector who enters premises under this chapter may, for this Act, do 1 or more of the following in relation to the premises, or anything at the premises:

(iii) to give the inspector reasonable help to exercise a power under this chapter.

Note 1 An inspector who enters premises under a search warrant may also exercise power under s 392B, s 392C and s 392D. An inspector who enters premises under a monitoring warrant may also exercise powers under s 392B and s 392D. See also s (3) in relation to the exercise of power under warrants.

Note 2 The Legislation Act, s 170 and s 171 deal with the application of the privilege against selfincrimination and client legal privilege.

(2) However, an inspector must not exercise a power under subsection (1) unless the inspector believes on reasonable grounds that the exercise relates to 1 or more of the following:

(e) an offence or possible offence, or a thing or activity connected with an offence or possible offence, against this Act.

(3) However, if the inspector enters the premises under a search warrant or monitoring warrant, the inspector may only exercise a power under subsection (1) in relation to a matter mentioned in subsection (2) if the warrant relates to the matter.

(4) This section does not apply to an inspector who enters premises under section 389 (1) (c) or (d).

Note An inspector who enters premises under s 389 (1) (c) or (d) has power under s 392A.

An inspector who enters premises under section 389 (1) (c) or (d) may, for this Act, give directions to the authorised person carrying out rectification work about how the work is to be carried out.

(1) An inspector who enters premises under a search warrant or monitoring warrant may require the occupier, or anyone at the premises, to give the inspector reasonable help to exercise a power under this chapter.

Note For other powers of inspectors under warrants, see s 389, s 392C, s 392D, pt 12.5A and pt 12.5B.

(2) A person commits an offence if the person fails to take all reasonable steps to comply with a requirement made of the person under subsection (1).

(3) An offence against subsection (2) is a strict liability offence.

(1) An inspector who enters premises under a search warrant or monitoring warrant may take samples of anything the inspector believes on reasonable grounds is connected with the matter to which the warrant relates.

Note For other powers of inspectors under warrants, see s 389, s 392B, s 392D, pt 12.5A and pt 12.5B.

(a) ensure that the sample allows paragraph (c) to be complied with; and

(b) give a receipt for the sample to the occupier of the place from where the sample was taken; and

(c) divide the sample into 2 parts as nearly as practicable identical in size and composition to each other and each suitable for the purpose of analysis; and

(d) place each part in a separate container and seal the containers; and

(e) attach to each container a label that is signed by the inspector and states the date and time when, and the place where, the sample was taken; and

An inspector who enters premises under a search warrant may seize anything at the premises that the inspector is authorised to seize under the warrant.

Note For other powers of inspectors under warrants, see s 389, s 392B, s 392C, pt 12.5A and pt 12.5B.

remote application means an application for a rectification work order made other than in person.

remote order means a rectification work order made on remote application.

rectification work order means an order made under this part.

An inspector may apply for a rectification work order to authorise entry to premises to carry out rectification work if—

(a) the planning and land authority gave a direction for rectification work to be done at the premises; and

(d) a person has been authorised to carry out the rectification work; and

(e) 1 or more of the following circumstances exists in relation to the premises:

(i) the rectification work proposed cannot reasonably be undertaken, or consent to entry cannot be obtained, during business hours;

(ii) an inspector who has given an intention to enter notice under section 391B, or an accompanying authorised person, has been refused entry in accordance with the notice;

(iii) a consent to the entry of an authorised person or accompanying person to carry out the rectification work has been withdrawn.

An application for a rectification work order must be sworn and state—

(a) the grounds on which the applicant relies to make the application; and

(c) if the order sought is for rectification work to be carried out at stated times outside business hours—why the work needs to be carried out at the stated times; and

(d) whether police assistance, or any other assistance, is likely to be needed to execute the order; and

(e) if the application is made other than in person—why the application is being made other than in person.

(1) A magistrate may refuse to consider an application for a rectification work order (whether a remote application or otherwise) until the inspector gives the magistrate any further information the magistrate requires for subsection (2).

(2) The magistrate must not make the rectification work order unless satisfied that—

Note The grounds for making the application are set out in s 402C.

(b) if the order authorises rectification work to be carried out at stated times outside business hours—that it is reasonably necessary for the work to be carried out at the stated times; and

(c) if the application states that assistance is likely to be necessary to execute the order—that the assistance mentioned in the application is reasonably necessary to execute the order; and

(d) if the application is made other than in person—that the application has been made in accordance with section 402H (Rectification work order—remote application).

(3) A rectification work order may not be made in relation to an inspector other than the applicant.

(4) However, a rectification work order may authorise another inspector to accompany the applicant to execute the order.

(d) that the inspector and authorised person may use reasonable force to enter the premises;

(e) if the order authorises using assistance in executing the order—the assistance that may be used in executing the order;

(f) that entry is authorised during business hours or, if authorised outside business hours, at stated times outside business hours;

(g) the date, not later than 4 working days after the day the order is made, when the rectification work must be begun.

(a) the carrying out of the rectification work to which the order applies; and

(b) the stated inspector to enter premises in accordance with the order; and

(d) if the order authorises assistance—the inspector and authorised person to enter with assistance in accordance with the order; and

(e) the inspector to remain on the premises, or to re-enter the premises, to give directions to the authorised person; and

(i) to remain on the premises to carry out the rectification work, whether or not the inspector remains on the premises; and

(ii) to re-enter the premises to complete the rectification work.

Note Also, an inspector may require a person’s name and address for a believed contravention of this Act (see s 393).

(1) An inspector may apply for a rectification work order in relation to premises by phone, fax, radio or other form of communication if the inspector considers it necessary because consent to the inspector’s entry to the premises has been withdrawn while the inspector was on the premises.

(2) Before applying for the rectification work order, the inspector must prepare an application in accordance with section 402D.

(3) However, the inspector may apply for the remote order before the application is sworn.

402I Rectification work order—after order made on remote application

(1) After making a rectification work order on a remote application, the magistrate must immediately fax a copy to the inspector who made the application if it is practicable to do so.

(2) If it is not practicable to fax a copy of the rectification work order to the inspector—

(ii) tell the inspector the date and time the order was issued; and

(b) the inspector must complete a form of order (the rectification work order form) and write on it—

(3) The inspector must, at the first reasonable opportunity, send to the magistrate—

(b) if the inspector completed a rectification work order form—the completed rectification work order form.

(4) On receiving the documents, the magistrate must attach them to the rectification work order.

(5) A court must find that a power exercised by the inspector was not authorised by a rectification work order made on a remote application if—

(a) the question arises in a proceeding in the court whether the exercise of power was authorised by a rectification work order; and

402J Entry under rectification work order—no occupier present

(a) an inspector proposes to enter premises as authorised by a rectification work order; and

(b) the inspector believes on reasonable grounds that no occupier is present at the premises.

(2) The inspector, and anyone authorised under the order to provide assistance, may enter the premises using reasonable force in accordance with the order.

(a) an inspector proposes to enter premises as authorised by a rectification work order; and

(b) give the occupier a copy of the rectification work order; and

(i) the authorised person accompanying the inspector is authorised to carry out rectification work under the order; and

(ii) the inspector may, but need not, remain on the premises to give directions to the authorised person; and

(i) hindering the inspector or authorised person may be an offence; and

(ii) the inspector and anyone authorised under the order to provide assistance may use reasonable force to enter if entry is refused.

(3) The inspector, and anyone authorised under the order to provide assistance, may enter the premises using reasonable force in accordance with the order.

remote application means an application for a monitoring warrant made other than in person.

remote warrant means a monitoring warrant made on remote application.

An inspector may apply for a monitoring warrant in relation to premises if—

(i) the inspector believes on reasonable grounds that a controlled activity has happened, or is happening, at the premises;

(ii) there is a controlled activity order in relation to a controlled activity at the premises;

(iv) a direction has been given under section 366 to carry out rectification work at the premises;

(v) an injunction under section 381 is in force in relation to the premises; and

(i) an inspector who has given an intention to enter notice under section 391B has been refused entry in accordance with the notice;

(A) is given an intention to enter notice under section 391B; and

(B) consents to the entry of an inspector in accordance with the notice; and

An application for a monitoring warrant must be sworn and state—

(a) the grounds on which the applicant relies to make the application; and

(d) if the application is made other than in person—why the application is being made other than in person.

(1) A magistrate may refuse to consider an application for a monitoring warrant (whether a remote application or otherwise) until the inspector gives the magistrate any further information the magistrate requires for subsection (2).

(2) The magistrate must not issue the monitoring warrant unless satisfied that—

Note The grounds for making the application are set out in s 402N.

(b) if the application states that assistance is likely to be necessary to execute the warrant—that the assistance mentioned in the application is reasonably necessary to execute the warrant; and

(c) if the application is made other than in person—that the application has been made in accordance with section 402S (Monitoring warrant—remote application).

(3) A monitoring warrant may not be issued in relation to an inspector other than the applicant.

(4) However, a monitoring warrant may authorise another inspector to accompany the applicant to execute the warrant.

(d) if the warrant authorises using assistance in executing the warrant—the assistance that may be used in executing the warrant;

(i) if the ground for applying for the warrant is a circumstance mentioned in section 402N (1) (a) (i)—5 working days after the day the warrant is issued; or

(ii) if the ground for applying for the warrant is a circumstance mentioned in section 402N (1) (a) (ii) to (v)—on the earlier of—

The monitoring warrant authorises the stated inspector, and anyone authorised by the warrant to provide assistance, to enter premises in accordance with the warrant.

Note 1 While on the premises, the inspector may exercise power under s 392.

Note 2 For when an inspector may require a person to state the person’s name and address, see s 393.

(1) An inspector may apply for a monitoring warrant in relation to premises by phone, fax, radio or other form of communication if the inspector considers it necessary because consent to the inspector’s entry to the premises has been withdrawn while the inspector was on the premises.

(2) Before applying for the monitoring warrant, the inspector must prepare an application in accordance with section 402O.

(3) However, the inspector may apply for the remote warrant before the application is sworn.

402T Monitoring warrant—after order made on remote application

(1) After making a monitoring warrant on a remote application, the magistrate must immediately fax a copy to the inspector who made the application if it is practicable to do so.

(2) If it is not practicable to fax a copy of the monitoring warrant to the inspector—

(ii) tell the inspector the date and time the warrant was issued; and

(b) the inspector must complete a form of warrant (the warrant form) and write on it—

(3) The inspector must, at the first reasonable opportunity, send to the magistrate—

(b) if the inspector completed a warrant form—the completed warrant form.

(4) On receiving the documents, the magistrate must attach them to the monitoring warrant.

(5) A court must find that a power exercised by the inspector was not authorised by a monitoring warrant made on a remote application if—

(a) the question arises in a proceeding in the court whether the exercise of power was authorised by a monitoring warrant; and

(a) an inspector proposes to enter premises as authorised by a monitoring warrant; and

(b) the inspector believes on reasonable grounds that no occupier is present at the premises.

(2) The inspector, and anyone authorised by the warrant to provide assistance, may enter the premises using reasonable force in accordance with the warrant.

(a) an inspector proposes to enter premises as authorised by a monitoring warrant; and

(ii) the inspector may use reasonable force to enter if entry is refused.

(3) The inspector, and anyone authorised by the warrant to provide assistance, may enter the premises using reasonable force in accordance with the warrant.

(1) This section applies in relation to an open space boundary of a block of land if, whether before or after the commencement of this section, a development requirement in relation to the block requires the erection of a basic paling fence for the boundary.

(2) The development requirement is taken to have been complied with for the open space boundary if, instead of a basic paling fence, either of the following is erected:

(b) a fence in accordance with a notice under the Common Boundaries Act 1981, section 23 (Boundary between leased and unleased land).

basic paling fence means a fence that consists of not more than—

Note An example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

development requirement, in relation to a block of land, means—

(b) a condition, other than a condition in a lease for the block of land, that—

(i) was approved by the Territory when the lease was granted; and

open space boundary means a boundary between leased and unleased territory land.

(1) A reference in the territory plan to an instrument prescribed by regulation is a reference to the instrument as in force from time to time.

Note 1 A statutory instrument may also apply, adopt or incorporate (with or without change) a law or instrument (or a provision of a law or instrument) as in force at a particular time (see Legislation Act, s 47 (1)).

Note 2 If a statutory instrument applies, adopts or incorporates a law or instrument (or a provision of a law or instrument), the law, instrument or provision may be taken to be a notifiable instrument that must be notified under the Legislation Act (see s 47 (2) to (6)).

(2) The Legislation Act, section 47 (6) does not apply in relation to an instrument mentioned in subsection (1).

(2A) A regulation may make provision about a matter by applying, adopting or incorporating (with or without change) a standard, or a provision of a standard, as in force from time to time.

(2B) The Legislation Act, section 47 (6) does not apply in relation to an Australian Standard or an Australian/New Zealand Standard applied, adopted or incorporated as in force from time to time under the regulations.

(1) This chapter, other than an excluded provision, expires 2 years after the commencement day.

(a) section 446 (Transitional—application for development approval if lease and development condition under repealed Act);

(b) section 446A (Transitional—power to make and apply lease and development conditions);

435 Transitional—variations begun but not notified under repealed Act

436 Transitional—draft plan variations publicly notified under repealed Act

437 Transitional—draft plan variation revised etc under repealed Act

442A Transitional—applications for subdivision lodged before commencement day

(a) before commencement day, a person applied for approval under the repealed Act, section 226 (Application to undertake development) and the development was for a subdivision of defined land; and

(b) the planning and land authority approves the application after the commencement day.

(2) Section 96 (When land ceases to be in future urban area) applies in relation to the development as if it had been approved under this Act.

442B Transitional—application for review lodged after commencement day for application lodged before commencement day

(a) before commencement day, a person applied for approval under the repealed Act, section 226 (Application to undertake development); and

(b) the application is decided by the Minister, or the planning and land authority, before or after commencement day; and

(2) The repealed Act (including the territory plan and any other instruments under the repealed Act) continues to apply for the purposes of deciding the application for review.

(3) To remove any doubt, this section is additional to, and does not limit, the Legislation Act, section 84 (Saving of operation of repealed and amended laws).

55 Transitional—application for development approval if lease and development condition under repealed Act

Section 446 (2)

(2) The planning and land authority, or Minister, must consider the lease and development condition in making a decision under section 162 (Deciding development applications) in relation to a development application if, and to the extent that, the territory plan requires the condition to be considered.

446A Transitional—power to make and apply lease and development conditions

(1) On and after the commencement day, the planning and land authority may make lease and development conditions and apply them in assessing a development application, and granting a development approval, to the extent that the territory plan requires.

(2) However, the planning and development authority may only exercise a power under subsection (1) in relation to a development application if—

(ii) relates to land that was defined land when the application was made; and

(iii) is for approval to subdivide land, whether or not it is also for approval of something else; and

(b) the lease and development conditions are relevant to assessing the application and granting the approval.

defined land means land identified in the old territory plan for the repealed Act, subdivision 2.3.4.

old territory plan means the Territory Plan under the repealed Act.

447 Transitional—extended meaning of development approval—s 199

448 Transitional—existing rights to use land etc not affected

456A Transitional—application for extension of time to commence or complete building and development

(1) This section applies if, immediately before commencement day, a person had a lease requiring the commencement or completion of building or development to take place within a stated time.

(2) An extension of the stated time approved by the planning and land authority before commencement day continues in force under the repealed Act until the time when, under that Act, it would have ended, including any time on or after commencement day.

(3) The repealed Act continues to apply in relation to an application made to the planning and land authority before commencement day to extend the stated time, including for any period on or after commencement day, if the authority had not decided the application before commencement day.

(4) If an extension of time applied for under section 298A (Application for extension of time to commence or complete building and development) includes any period before commencement day—

(a) the repealed Act applies in relation to the application to the extent to which it relates to the period; and

(b) in particular, section 298A (3) (b) does not apply in relation to the application to the extent to which it relates to the period.

(5) A period of time before commencement day included in an extension of time approved by the planning and land authority in relation to the lease is not included in the prescribed period under section 298B (Extension of time to commence or complete building and development) in relation to an application under section 298A.

34A	decision under s 298B to approve an extension of a stated time for a shorter period than that sought	planning and land authority	lessee
34B	decision under s 298B to refuse an extension of a stated time	planning and land authority	lessee

Note Working day means a day that is not a Saturday or Sunday or a public holiday in the ACT under the Holidays Act 1958 (see Legislation Act, dict, pt 1).

(b) if the premises are not residential premises—includes any period the premises are open for business outside the period mentioned in paragraph (a).

publicly notifies, in relation to a development application—see section 152.

regulated tree—see the Tree Protection Act 2005, section 10.

(a) for part 12.5A (Rectification work orders)—see section 402A; and

remote order, for part 12.5A (Rectification work orders)—see section 402A.

remote warrant, for part 12.5B (Monitoring warrants)—see section 402L.

section 365, definition of rectification work, paragraph (a) (i)

71 Schedule 2, section 2.1, definitions of city centre, commercial C4 zone and commercial C5 zone

city centre means the area identified as the city centre in the City Centre Precinct Code in the territory plan.

commercial CZ4 zone means an area designated as a commercial CZ4 (Local Centres Zone) zone in the territory plan.

commercial CZ5 zone means an area designated as a commercial CZ5 (Mixed Use Zone) zone in the territory plan.

72 Schedule 2, section 2.1, definitions of group centre and office site

group centre means an area identified as a group centre in the Group Centres Precinct Code in the territory plan.

office site means an area identified as an office site outside the city centre, group centres and town centres in the territory plan.

74 Schedule 2, section 2.1, definitions of town centre and TS2 services zone

town centre means an area identified as a town centre in the Town Centres Precinct Code in the territory plan.

TSZ2 services zone means an area identified as a TSZ2 (Services Zone) zone in the territory plan.

4	zone D	land in a commercial CZ4 zone
5	zone E	land in— • a restricted access recreation zone • a broadacre zone
6	zone F	land in— • a commercial CZ5 zone • a TSZ2 services zone • a community facility zone	land in the Queanbeyan city special uses zone

76 Dictionary, definitions of commercial C4 zone, commercial C5 zone and TS2 services zone

commercial CZ4 zone, for schedule 2 (Noise zones, noise standards and conditions)—see schedule 2, part 2.1, section 2.1.

commercial CZ5 zone, for schedule 2 (Noise zones, noise standards and conditions)—see schedule 2, part 2.1, section 2.1.

TSZ2 services zone, for schedule 2 (Noise zones, noise standards and conditions)—see schedule 2, part 2.1, section 2.1.

72D Memorial of application of Planning and Development Act 2007, s 251 to lease

If the planning and development authority tells the registrar-general that the Planning and Development Act 2008, section 251 (Restrictions on dealings with certain leases) applies to a lease, the registrar-general must enter in the register a memorial to that effect.

For the latest republication of amended laws, see www.legislation.act.gov.au.

Australian Capital Territory Bills

PLANNING AND DEVELOPMENT LEGISLATION AMENDMENT BILL 2008