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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (NO 1) (NO 8 OF 2008)
2008
THE LEGISLATIVE
ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
PLANNING AND DEVELOPMENT AMENDMENT
REGULATION 2008 (No 1)
SUBORDINATE LAW No
SL2008-8
EXPLANATORY
STATEMENT
Circulated
by authority of
Andrew Barr MLA
Minister for Planning
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2008 (No
1)
EXPLANATORY STATEMENT
Overview
The Planning and Development Amendment Regulation
is made under section 426 of the Planning and Development Act 2007 (the
Act).
This regulation amends the Planning and Development Regulation
2008 (the regulation).The amendments are necessary—
• as
a result of the passing of the Planning and Legislation Amendment Act
2008 (the Amendment Act) by the Legislative Assembly which amended certain
sections of the Act after the making and tabling of the regulation; and
• to make other less substantive and some minor and technical
changes as explained herein.
Strict liability offence in the
Regulation
Section 17 creates a strict liability offence. Under
section 17(3), a person commits an offence if:
(a) the person interferes
with a seized thing, or anything containing a seized thing, to which access has
been restricted under subsection (2); and
(b) the person does not have
an inspector’s approval to interfere with the thing.
Under section
17(4) it is a strict liability offence with a maximum penalty of 10 penalty
units. A penalty unit is defined in the Legislation Act 2001 and is
currently $100.
As section 17 is a strict liability offence, it engages
sections 18(1) and 22(1) of the Human Rights Act 2004. The government
notes the following features and characteristics of the offence, which it
believes justify the imposition of strict liability:
• The offence
is regulatory in nature, and cannot be considered “truly criminal”
in the sense that it does not involve conduct that is “morally
wrong” or “reprehensible” (see International Transport Roth
GmbH & Ors v Secretary of State for the Home Department [2002] EWCA Civ
185). Also, the offence would only apply in situations where investigation by
an inspector is required to determine whether a controlled activity is occurring
or to determine whether an alleged offence has occurred or to determine whether
an occupier has complied with an already issued compliance order (such as a
rectification direction), and would not apply to members of the community at
large (see Engle v Netherlands (1980) 1 E.H.R.R. 647). Further, the
maximum penalty does not involve imprisonment and is relatively minor (10
penalty units), and is principally intended to act as a deterrent, and not be
punitive or “extract retribution for wrong doing” (see Ozturk v
Germany (1984) 6 E.H.R.R. 409).
• The offence is important to
protect the integrity of the regulatory regime in the Act, and strict liability
is necessary to ensure the offence can effectively be prosecuted. The Government
notes that there is authority from the European Court of Human Rights and the
Canadian Supreme Court holding that where the offence is not punishable by
imprisonment considerations of “administrative efficiency” may be
afforded some weight in determining whether the imposition of strict liability
is justifiable (see Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486; and
R v The Corporation of the City of Sault Ste. Marie [1978] 2 S.C.R.
1299,). Strict liability offences are an efficient and cost effective deterrent
for breaches of regulatory provisions. They are appropriate where the authority
is in a position to
readily assess the truth of a matter and that an offence
has been
committed. They can be dealt with by infringement notice which is a
cheaper and less time consuming alternative to a court prosecution. Strict
liability is beneficial where offences need to be dealt with expeditiously
to
ensure confidence in the regulatory scheme.
The Government is of the view that when the totality of the above factors are
considered together, the imposition of strict liability is reasonable and
demonstrably justified under section 28 of the Human Rights Act 2004,
especially when considered in light of relevant international jurisprudence
concerning offences of a similar nature.
Section 1 - Name of regulation - names the regulation as
the Planning and Development Amendment Regulation 2008 (No 1).
Section 2 - Commencement - provides that
the regulation commences on the commencement of the Planning and Development
Regulation 2008.
Section 3 - Legislation amended -
states that the regulation amends the Planning and Development Regulation
2008.
Section 4 - Section 20, notes –
substitutes a new note which removes Note 1 from the regulation as it is not
correct.
Section 5 - Sections 27 and 28 - substitutes new
sections 27 and 28 as a result of the insertion of new section 152 by the
Amendment Act. Substituted section 27 specifies that an application for
a development proposal in the merit track for an estate development plan in a
future urban area must be notified in accordance with the Act, section
152(2)(a), that is, a sign displayed on the place and an advertisement in a
daily newspaper, and, if applicable, under section 154 of the Act. An
application for a development proposal in the merit track mentioned in schedule
2 of the regulation must be notified in accordance with the Act, section
152(2)(b), that is, letters to neighbours and if, applicable, under section 154
of the Act.
Substituted section 28 prescribes public
consultation period for section 157(a) of the Act. This amendment of
section 28 is required because of the amendment of section 152 of the Act by the
Amendment Act. The public consultation period for development applications
notified in accordance with section 152(1)(a) of the Act, that is, applications
for estate development plans and applications mentioned in schedule 2 of the
regulation, is 10 working days. The public consultation period for development
applications notified in accordance with section 152(1)(b) of the Act, that is,
any other application for a development proposal, is 15 working days.
Section 6 - Section 100, definition of territory
entity, note 2- amends note 2 to include a reference to the now two
sections in the regulation relating to direct sales to the housing commissioner.
Previously, only section 109 of the regulation specified the criteria for the
direct sale of a lease to the commissioner for housing. The Amendment Act
amended section 240 of the Act to allow direct sales of leases by the planning
and land authority (the authority) as prescribed by regulation. As a result,
section 130 has been inserted into the regulation (see section 10 below) which,
amongst other things, prescribes that a lease of allocated land to the
commissioner can be sold directly to the housing commissioner by the
authority.
Section 7 - Section 102(2), note – amends
the note so that it refers to the correct section. Section 401 will become
section 402 under section 18 below.
Section 8 - Section
111(2), note – amends the note so that it refers to the correct
section. Section 401 will become section 402 under section 18
below.
Section 9 - Section 120(a) - inserts additional
words in section 120(a) because of the insertion of section 130 in the
regulation. The Amendment Act amended section 240 of the Act to allow direct
sales of leases by the authority as prescribed by regulation. As a result,
section 130 has been inserted in the regulation (see section 10 below) which,
amongst other things, prescribes that a lease of land can be sold directly by
the authority to the Territory if the land is used or occupied by the Territory.
As a result, section 120(a) is amended to make it clear that it applies to
leases granted to the Territory except those to which section 130(1)(f) applies.
The new section 120(a) refers to the Act, section 240(1)(ca). This is a
reference to section 240(1)(ca) as inserted by the Amendment Act, section 22
which is proposed to be editorially renumbered as section 240(1) (d) in the
first republication of the Act on the Legislation Register for the commencement
of the Act.
Section 10 - New division 5.1.4 –
Division 5.1.4 Certain direct sales not requiring approval
-
Inserts a new section 130 in the regulation as a result of the
Amendment Act amending section 240 of the Act to allow direct sales of leases by
the authority. Section 130 prescribes those leases that can be sold directly by
the authority. They include:
(a) a lease offered at auction but not
sold;
(b) a lease offered at ballot but not sold;
(c) a lease sold at
ballot but the contract of sale is rescinded or
otherwise ended before the
lease is granted under the contract;
(d) a lease of allocated land to the
housing commissioner;
(e) a lease to Community Housing Canberra
Limited,
(f) a lease of land to the Territory if the land is used or
occupied
by the Territory.
The new section 130 refers to the Act,
section 240(1)(ca). This is a reference to section 240(1)(ca) as inserted by the
Amendment Act, section 22 which is proposed to be renumbered as section
240(1)(d) in the first republication of the Act on the Legislation Register for
the commencement of the Act. Similarly, the reference to ‘240(1)(cb) to
(e)' in the Note to division 5.1.4 is a reference to sections 240 (1)(cb),(d)
and (e) of the Act. Section 240(1)(cb) was inserted in the Act by section 22 of
the Amendment Act. Sections 240(1)(d) and (e) were inserted in the Act by
section 1.125 of the Planning and Development (Consequential Amendments) Act
2007. Section 240(1)(cb)(d) and (e) are proposed to be renumbered as (e) (f)
and (g) respectively in the first republication of the Act on the Legislation
Register for the commencement of the Act.
Section 11 - New
sections 141 and 142 – inserts new sections 141 and 142 in the
regulation.
Section 141- Under section 251(1)(c) of the Act, as
amended by the Amendment Act, section 251 applies to a lease granted under
section 238(1)(d) of the Act other than...(ii) a single dwelling house lease,
other than a single dwelling house lease prescribed by regulation. Section 11
prescribes such a lease and its effect is that a single dwelling house lease is
subject to the restrictions under section 251 of the Act if the lease provides
that the lessee cannot deal with the land, or part of the land, comprised in the
lease without the prior written consent of the authority.
The Note in new
section 141 refers to the Act, section 240(1)(e). This is a reference to section
240 (1)(cb) as inserted by the Amendment Act, section 22 which will be
renumbered as section 240(1) (e) in the first republication of the Act on the
Legislation Register for the commencement of the Act.
Section
142 – prescribes those leases that are exempt from the Act, section
251 in accordance with section 251(2A) which was inserted by the Amendment Act.
Section 142(1) clarifies that a concessional lease and a rural lease is exempt
from sections 251(1) (a), (b) and (c). Sections 265 and 284 of the Act deal with
restrictions on dealings with such leases. Under section 142(2), the following
leases are exempt from section 251(b) and (c) of the Act:
(a) a lease to
Community Housing Canberra Limited;
(b) a lease granted under the Act,
section 238 (1) by auction, tender or ballot if—
(i) the class of
people eligible or ineligible for the grant was restricted under the Act,
section 239; and
(ii) the lease is sold for market value; and
(iii) the
Act, section 251 (1) (a) or (d) does not apply to the lease;
(c) a lease
granted under the Act, section 241 if—
(i) the lease is sold for market
value; and
(ii) the Act, section 251 (1) (a) or (d) does not apply to the
lease.
The new section 142 refers to the Act, section 251(2A). This is a
reference to section 251(2A) as inserted by the Amendment Act, section 29 which
is proposed to be renumbered as section 251(3) in the first republication of the
Act on the Legislation Register for the commencement of the Act.
Section 12 - Section 160 heading – amends the
heading of section 160 so that it refers to the correct section of the Act.
Section 13 - New section 161 – inserts a new section
160 that prescribes the period of 20 working days for section 272B(1) of the Act
which was inserted by the Amendment Act.
Section 14 - New
sections 202 and 203 – inserts new sections 202 and 203 in the
regulation.
Section 298A(5)(b) was inserted in the Act by the Amendment
Act. Under section 298A an application to extend the commencement or completion
of a building and development provision must be accompanied by the required fee.
The required fee is worked out in accordance with the formula in section
298A(3)(b). Under section 298A(5), “A” in the formula is 5, or a
lower figure, if prescribed by regulation. New section 202 prescribes the
lower figures. It is 1 if a hardship reason applies to 1 or more of the lessees.
The prescribed figure is 3 if:
(a) subsection 202(1) does not apply;
and
(b) the lessee is 1 or more individuals only; and
(c) none of the
individuals has made an application under the Act section, 298A in relation to
another lease within the 3 year period before the day the application is made.
Under section 202(3) hardship reason means:
(a) a
reason mentioned in the Act, section 298(2)(b)(ii) or (iii);
(b) and for a
lessee which is an individual – a reason mentioned in section 200 of the
regulation.
New section 203 is a regulation required pursuant to
section 298B(6)(b) which was inserted in the Act by the Amendment Act. It
provides that the authority may extend the maximum aggregate period of time for
compliance with a building and development provision in a lease beyond the 3
year maximum by any period up to a maximum of 2 years, if hardship is
established.
The authority can extend the maximum aggregate period
for an individual if satisfied that the lessee:
(1) cannot comply
with the building and development provision within the required period because
of:
(a) personal reasons; or
(b) financial reasons connected with the
lease; or
(c) an unforeseen major event outside the lessee’s control
that has a demonstrable effect on the lessee’s ability to develop the
land; and
(2) has demonstrated that the lessee is reasonably likely to
be able to meet the new extended time frame for compliance.
The authority
can only extend the maximum aggregate period for an entity, other than an
individual, if satisfied that the lessee:
(1) cannot comply with the
building and development provisions because of:
(a) financial reasons
connected with the lease; or
(b) an unforeseen major event outside the
lessee’s control that has a demonstrable effect on the lessee’s
ability to develop the land; and
(2) has demonstrated that the lessee is
reasonably likely to be able to meet the new extended time frame for
compliance.
The Note indicates that the 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 (see section 298B(3) of the Act).
Section 15 -
Section 400 heading – substitutes a new heading to include the word
“regulation” at the end. This is to clarify that section 400 is made
for the purposes of the regulation because it relates to matters in the
regulation.
Section 16 – New section 400A –inserts new
section 400A. Section 400 is made for the purposes of the regulation because it
relates to matters in the regulation while section 400A is made for the purposes
of the Act, section 422A.
Section 17- Section 401(g) -
substitutes a new section 401(g) for clarification purposes.
Section
18 - Sections 400A and 401 (as amended) – renumbers sections
400A and 401 as sections 401 and 402.
Section 19 - New section
403 – inserts new section 403 in the regulation. It expands on
section 392D which was inserted by the Amendment Act. Section 392D of the Act
specifies that 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. New section 403 states that the inspector may remove a seized thing
from the premises or leave it at the place but restrict access to it. A person
commits a strict liability offence if the person interferes with a seized thing
or anything containing a seized thing, to which access has been restricted,
without an inspector’s approval. The offence has a maximum penalty of 10
penalty units. A penalty unit is defined in the Legislation Act 2001 and
is currently $100.
Section 20 - New section 410 –
inserts new section 410 in the regulation. It provides that the regulation,
schedule 5, modifies chapter 15 of the Act as stated in schedule 5, and that
both new section 410 and schedule 5 expire on 31 March 2010. That is because
the affect of new section 10 is intended to be for a transitional period of 2
years from 31 March 2008.
Sections 21- 43
Sections 21 to
43 make various changes to certain stated sections in Schedule 1, part 1.3. The
amendments are necessary for one or more of the following reasons:
(1) to
disapply certain of the exemption criteria of Schedule 1, part 1.2 to stated
sections of part 1.3 to ensure the exemptions provided by part 1.3 achieve the
intended effect;
(2) to adjust terminology for better consistency and
readability, and to facilitate application of the amended definition of the term
height in the dictionary to the regulation;
(3) to adjust
format and numbering to increase usability and to facilitate any future
insertion of additional provisions;
(4) to clarify that existing
exemptions in relation to certain class 10a buildings are preserved and not
subject to the more onerous exemption parameters applicable to larger class 10a
buildings.
Other amendments to Schedule 1 are to improve usability or are
consequential to amendments by the Amendment Act, in particular, in relation to
fences.
In addition, the definition of the term height has
been amended to ensure the intended effect.
Section 21 -
Schedule 1, section 1.1, new definitions
Inserts new definitions for
basic paling fence and open space boundary in Schedule 1, section 1.1 to improve
consistency with similar changes in the Act.
Section 22 -
Schedule 1, section 1.13 (2)
Amends Schedule 1, section 1.13 to add
detail ensuring the exemptions provided by part 1.3 achieve the intended effect
for specific open space boundary fencing.
Section 23 - Section 1.16,
examples
Amends the examples of Schedule 1, section 1.13 to clarify the
approvals required in a development where a house is combined with a rear deck
or pergola. This amendment also accounts for the amended definition of
height in the regulation.
Section 24 – Schedule 1,
section 1.19
Omits schedule 1, section 1.19 from the regulation, as its
provision is moved to a different section number. See section
28.
Section 25 – Schedule 1, section 1.20
Substitutes new
criteria for internal alterations of buildings in Schedule 1, section 1.20 to
ensure only the stated prescribed general criteria apply rather than all of the
criteria. That is necessary to ensure the provision achieves its intended
effect.
Section 26 – Schedule 1, section 1.21 (c)
Amends
Schedule 1, section 1.21 (c) to ensure consistency with the amended definition
of height in the regulation.
Section 27 -
Schedule 1, section 1.22 (1) new definition of
structure
Inserts an amended definition of structure
in Schedule 1, section 1.22 (1) to account for changes to provisions relating to
open space boundary fences.
Section 28 - new Schedule 1, section 1.31
Inserts what was section 1.19 into new section number 1.31, for
formatting purposes.
Section 29 – Schedule 1, division
1.3.2
Amends Schedule 1, division 1.3.2 to clarify that existing
exemptions in relation to certain class 10a buildings are preserved and not
subject to the more onerous exemption parameters applicable to larger class 10a
buildings. Also amends numbering to increase useability.
Section 30 -
Schedule 1, division 1.3.3
Amends Schedule 1, division 1.3.3 to ensure
signs that are exempt development are not subject to inappropriate criteria,
such as criteria that prohibit signs of a white or metallic colour. This is to
ensure the original intent of the exemption is achieved. Numbering is also
amended to ensure useability.
Section 31 - Schedule 1, division
1.3.4, section 1.70 to 1.73
Renumbers Schedule 1, division 1.3.4 to
improve readability.
Section 32 - Schedule1, section
1.80
Amends Schedule1, section 1.80 to ensure rural lease developments
that are exempt development are not subject to inappropriate criteria, such as
criteria intended for urban settings. This is to ensure the original intent of
the exemption is achieved.
Section 33 - Schedule 1, section
1.81
Renumbers Schedule 1, section 1.81 to improve
readability.
Section 34 – Schedule 1, section 1.90 (1) (b)
(iii)
Amends Schedule 1, section 1.90 (1) (b) (iii) to specify exempt
territory development that are minor pubic works includes installation of a
parking control sign or traffic control device approved by the authority in the
form of a notifiable instrument. This is necessary to ensure that road signs
not covered in relevant Australian Standards can be erected, but only of a kind
approved by the ACT Planning and Land Authority.
It is anticipated that
existing guidelines in relation to road signs could be approved in whole or in
part, for example, to preserve the status quo in relation to road sign
exemptions.
Section 35 – Schedule 1, section 1.90
(3)
Amends Schedule 1, section 1.90 (3) to specify the approval of the
following is a notifiable instrument:
(a) a bus shelter master
plan;
(b) a kind of a parking control sign or traffic control
device.
See the explanation for section 34, above, for further
explanation.
Section 36 – Schedule 1, section 1.95, notes 2 and
3
Amends Schedule 1, section 1.95, notes 2 and 3 to remove the general
exemption criteria notes for temporary flood mitigation measures. This is to
ensure the original intent of the exemption is achieved.
Section 37
– Schedule 1, section 1.100
Amends Schedule 1, section 1.100 to
ensure single dwellings that are exempt development are not subject to the
general exemption criteria of Schedule 1. This is necessary as the objectives
of those criteria are taken account of in the section 1.100 provision in that
the provision requires compliance with the relevant rules in a stated code under
the territory plan and those rules are equivalent to the criteria. Applying the
criteria in addition to the rules is therefore redundant.
Section 38
– Schedule 1, section 1.104 (1), note 2
Amends Schedule 1, section
1.104 (1), note 2 to remove the reference to the omitted section regarding
verandahs.
Section 39 Schedule 1, section 1.104(3), definition of
prescribed landscaping, paragraph (c)
Inserts a new paragraph (c)
in the definition of prescribed landscaping to bring the
references to natural grounds level into line with other references to the term
in Schedule 1.
Section 40 – Schedule 1, sections 1.106 and
1.107
Amends Schedule 1, sections 1.106 and 1.107 to ensure resiting of
buildings with development approval and resiting of exempt buildings are exempt
under the prescribed general exemption criteria. That is to ensure the
provisions achieves its intended effect.
Section 41 – Schedule
1, section 1.109
Amends Schedule 1, section 1.109 to clarify the meaning
of designated area for developments not involving a lease
variation.
Section 42 - Schedule 1, new part 1.4
Inserts
new part 1.4 in Schedule 1, which specifies permitted open space boundary
fence colours for section 1.52.
Section 43 - Schedule 1, part
1.5 heading, note
Substitutes a new Note in Schedule 1, part 1.5, to
correct section references.
Section 44 - Schedule 2, item 1,
column 2, paragraph (d)(ii)
Amends Schedule 2, item 1, column 2,
paragraph (d)(ii) to clarify that the height of 6.5m is the height of 6.5m above
natural ground level.
Section 45 - Schedule 2, item 1, column
2, paragraph (f)
Amends Schedule 2, item 1, column 2, paragraph (f) to
clarify that the height of 6.5m is the height of 6.5m above natural ground
level.
Section 46 - Schedule 3, part 3.2, item 5, column 2,
paragraph (d)
Amends Schedule 3, item 5, column 2, paragraph (d) to
clarify that the height of 10m is the height of 10m above natural ground
level.
Section 47 - Schedule 3, part 3.2, item 8, column 2,
paragraph (h)
Amends Schedule 3, item 8, column 2, paragraph (h) to
clarify that the height of 6m is the height of 6m above natural ground
level.
Section 48 - Schedule 3, part 3.2, item 9, column 2,
paragraph (i)
Amends Schedule 3, item 9, column 2, paragraph (i) to
clarify that the height of 6m is the height of 6m above natural ground
level.
Section 49 - Schedule 3, part 3.2, item 10, column 2,
paragraph (i)
Amends Schedule 3, item 8, column 2, paragraph (i) to
clarify that the height of 6m is the height of 6m above natural ground
level.
Section 50 - New schedule 4
Inserts a new
schedule 4. Schedule 4 is inserted as a result of the insertion of new section
400A (to be renumbered as s401) – see sections 16 and 18 above. Section
400A/401 prescribes that section 47(6) does not apply to the territory plan
instruments mentioned in Schedule 4 of the regulation, that is, they need not be
notified on the Legislation Register. The reason for not requiring these
instruments to be notified is that they are readily available either by purchase
or on the internet and/or are subject to copyright.
Section 51 –
New schedule 5 (Modification of Act)
Inserts new schedule 5 for section
410 of the regulation, which provides that schedule 5 modifies chapter 15 of the
Act as stated in schedule 5, and that both new section 410 and schedule 5 expire
on 31 March 2010. That is because the affect of new section 10 is intended to
be for a transitional period of 2 years from 31 March 2008.
Amendment
[5.1] of new schedule 5 modifies the Act by inserting new section 429A
(Modification of Act, ch 15—Act, s 429)– under section 429A of
the Act, modifies section 298A (5) of the Act. Section 429A modifies section
298A (5) of the Act by substituting a new definition of “D”. The
intention of s298A is that one fee is payable when extensions are sought in
relation to multiple time limits contained in a lease. The intention is for the
fee to be based on the maximum increase sought, that is, if a lessee seeks a 6
months extension to commence and a 12 months extension to complete, the fee is
based on the 12 months. This regulation provides clarity to the legislative
intent.
The modification expires on 31 March 2010 because of
section 20 - New section 410.
Amendments [5.2] and [5.3] of new
schedule 5 modify the Act by substituting section 442(1) and inserting section
442 (4). The modification expands section 442 to include an application for an
amendment of an approval under the repealed Act and to clarify the meaning of
the section by providing a definition of finally decided and
reconsideration period. Under new s 442(1), the section applies,
if before the commencement day of the Act:
(1) a person applied for an
approval under the Land (Planning and Environment) Act 1991 (the
repealed Act), section 226 (Application to undertake development); or
(2) an
amendment of an approval under the repealed Act, section 247 (Minor amendments);
and
Immediately before commencement day, the authority had not finally
decided the application.
Section 442(4) specifies the meaning of
finally decided and reconsideration period for the
section. An application for approval under the repealed Act is finally
decided if:
(a) the period for making an application under the
repealed Act, section 246 for reconsideration of the authority’s decision
on the application for approval has ended and no application for reconsideration
has been made; or
(b) If an application for reconsideration of the
authority’s decision on the application for approval is made within the
reconsideration period - the authority has made a decision on the application
for reconsideration; or the authority is taken to have confirmed the original
decision under the repealed Act, section 246B.
Reconsideration
period means the period within which an application must be made under
the repealed Act, section 246(3).
Under sections 442 (2) and (3), the
repealed Act continues to apply in relation to the application despite its
repeal and if the application is approved, the approval is taken to be a
development approval under this Act.
The modification expires on
31 March 2010 because of section 20 - New section 410.
Amendment [5.4]
of new schedule 5 modifies the Act by substituting a new section 444
as follows:
Section 444(1) specifies that the section applies not only
when a person has an approval immediately before the commencement day of the Act
but also when the authority gives an approval under the repealed Act after the
commencement of the Act. Under section 444 (2) the approval:
(a) is taken to
be a development approval under the Act;
(b) unless extended under the Act,
continues in force until the time when it would have ended under the repealed
Act; and
(c) for the Act, section 198 (2) (Deciding applications to amend
development applications) is taken to relate to a proposal in the merit
track.
Pursuant to new section 444 (3), if the application to which the
approval relates was not required to be publicly notified under the repealed
Act, an application under the Act for the amendment of the approval need not be
notified under the Act.
The modification expires on 31 March 2010
because of section 20 - New section 410.
Amendment [5.5] of new
schedule 5 modifies the Act by substituting a new section 445 (2) (a).
When an approval has been given under the repealed Act and an extension of the
approval has been granted but has not commenced on commencement day of the Act,
the approval is taken to be a development approval under the Act and ends at the
end of the period for which the approval was extended under the repealed Act
before commencement day.
The modification expires on 31 March
2010 because of section 20 - New section 410.
Amendment [5.6] of
new schedule 5 modifies chapter 15 of the Act by omitting section 447. Section
447 is no longer required because of the modification of sections 444 and 445 by
sections 502 and 503 above. Sections 502 and 503, amongst other things, insert a
provision in section 444 and 445 (see s444 (2)(a) and s445 (2)(a)) that states
that an approval under the repealed Act is taken to be a development approval
under the Act. As a result, section 447 is redundant. Section 504 expires on 31
March 2010.
The modification expires on 31 March 2010 because of
section 20 - New section 410.
Section 52 - Dictionary, new
definitions of basic paling fence and class 10a building
Inserts new definitions of basic paling fence and
class 10a building in the Dictionary.
Section 53 -
Dictionary, definition of height
Substitutes a new definition
of height in the Dictionary to ensure it achieves its intended
effect.
Section 54 - Dictionary, new definitions of open
space boundary and prescribed general exemption
criteria
Inserts new definitions of open space boundary
and prescribed general exemption criteria in the Dictionary as
a consequence of new provisions inserted in schedule 1 of the
regulation.
Cost impacts
Minor impacts and less fees through
reduction for hardship cases.