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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 11) (NO 40 OF 2009)
2009
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Planning and Development
Amendment Regulation 2009 (No
11)
SL2009-40
EXPLANATORY
STATEMENT
Circulated by authority of the
Minister for Planning
Mr
Andrew Barr MLA
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (No
11)
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 regulation may prescribe
those things that do not require development approval. Development that does not
require development approval is DA exempt development. Section 20 and schedule 1
of the regulation exempt specified development from requiring a development
approval. Schedule 1A provides for construction tolerances and works in
conjunction with schedule 1.
For each type of development that does not
require a DA there are stated requirements that the development must comply with
for the exemption to apply. For instance the DA exemption for a single dwelling
requires that for the development to be DA exempt that it must comply with the
relevant rules in the relevant Code and precinct code in the Territory Plan and
have building approval under the Building Act 2004. The relevant rules
are the “black and white” quantitative rules and do not include the
qualitative merit criteria in the relevant Code.
Although schedule 1
describes circumstances in which development may be exempt from requiring
development approval, the schedule does not remove the requirement for
development to comply with any other applicable Australian Capital Territory
(ACT) legislation. For example, if the schedule provides that certain dwellings
may be constructed without a development approval under the Act, it may be that
other authorisations are needed under other laws, such as a building approval
under the Building Act 2004. The work may also be required to be done by
the holders of relevant licences issued under the Construction Occupations
(Licensing) Act 2004.
The types of development already prescribed in
schedule 1 include such things as single dwellings on residential land and small
structures such as sheds, garages and pergolas. In the majority, the range of
things prescribed in schedule 1 has been successfully used within the community
since 31 March 2008 when the Act began operation. For instance, the ACT
Planning and Land Authority (the authority) has found that 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 clarifies or amends some existing exemptions in schedule 1 and also
adds a number of new exemptions. These new exemptions relate to developments
that operational experience and industry feedback suggest should be DA exempt.
In summary, this amending regulation:
1. Amends when a survey
certificate is required.
2. Omits general exemption criteria 1.13 from
schedule 1
3. Makes new DA exemptions for:
- external shades
-
resealing driveways - residential
- flag poles
- demolition of class 10
buildings or structures
- rebuilding 'damaged' buildings
-
bores
4. Amends the criteria for existing exemptions in schedule 1 as
follows:
- s1.45 to allow for a larger building or structure
- s1.46 to
allow for a larger building or structure
- s1.55 to allow for a larger water
tank
- s1.100 so that an exempt single dwelling does not have to comply with
Rule 33 or 66 of the territory plan (this is because the general exemption
criteria has been omitted by this amending regulation)
- s1.103 for reasons
of clarification
5. Amends existing criteria s1.75 - 1.78 in schedule 1
to remove the need to comply with the general exemption criteria.
Third party appeals
The proposed law, by broadening the
circumstances in which development may occur without development approval, will
impact on the ability to comment on such development and consequently it may be
perceived as an erosion of community opportunity to comment on development
proposals. However in the most there has been very little public complaint
about DA exemptions and the type of things which are exempt. Industry who in
the most deal with proponents and work daily with exempt developments,
acknowledge the benefits that DA exempt development offers.
Exempt
development does not have a public notification requirement because during the
development of the Act and the relevant Territory Plan Codes extensive public
consultation was conducted. Therefore, the resultant rules around exempt
development are designed to deliver acceptable community outcomes i.e. they do
not create any material detriment (which is the only grounds for third party
appeal). The criteria for the type of development, that the amending regulation
introduces, maintains these type of parameters and has been consulted on with
industry and responds to operational experience in the DA assessment process.
Human rights issues in relation to schedule 2
The types of changes proposed by the amending regulation are not
considered to impact on Human rights unduly. This is because the types of
development that are affected by the amending regulation are in the most not
significant and in many cases are adjustments to existing exemptions.
The
removal of third party appeal rights could be seen as a impinging on human
rights. The Human Rights Act 2004 (the HRA), in sections 12 (right
to privacy) and 21 (right to a fair trial [including a hearing]), recognises
certain rights that arguably may be affected by the expanding DA exemptions.
However, in relation to section 21, it would appear that case law from related
jurisdictions indicates that human rights legislation containing the equivalent
of section 21 does not guarantee a right of appeal for civil matters.
Opportunities for input into planning and development applications and the
existence of a right to judicial review have been held in many cases to satisfy
the requirement of the right to a fair trial. Case law in relation to human
rights legislation containing the equivalent of section 12 suggests that any
adverse impacts of a development authorised through a planning decision must be
quite severe to constitute unlawful and arbitrary interference with a
person’s right to privacy.
To the extent that schedule 1 of the
regulation limits any rights afforded by the HRA, these limitations must meet
the proportionality test of section 28 of that legislation. The schedule serves
to improve the development assessment process within the Territory by ensuring
that only matters which have the potential to significantly impact on
residential areas are open to third party appeals. Persons that may be affected
by particular development applications in these areas continue to have the
ability to make submissions on individual development applications as well as
territory plan variations that establish the overall planning policy for these
areas. Rights of judicial review under the Administrative Decisions
(Judicial Review) Act 1989 remain.
Clause 1 – Name of Regulation –states the name of the
regulation, which is the Planning and Development Amendment Regulation 2009
(No 11).
Clause 2 – Commencement –states that the
regulation commences the day after its notification.
Clause 3
– Legislation amended – states that the regulation amends the
Planning and Development Regulation 2008.
Clause 4 – New
section 25 (1) (e) – inserts new section 25(1) (e). New section
25(1)(e) inserts a new circumstance when a survey certificate need not accompany
a development application. A survey certificate need not accompany a development
application if the proposed development is the alteration of a building on a
block in a residential zone if the alteration does not increase the gross floor
area of the building and does not a change the siting of the building on the
block. Gross floor area is defined in the territory plan.
Clause 5
– Schedule 1, section 1.10 (c) — Clause 5 omits section 1.10(c)
of schedule 1 from the regulation. This means that Criterion 3 (section 1.13 of
schedule 1) is no longer a general exemption criterion. Where criterion 3
applied, a development for the building or alteration of an external wall or
roof in a residential zone (including a fence) could not include metal sheet,
wall or roofing that has a metallic, white or off-white finish.
Section
1.10 of schedule 1 defines the term general exemption criteria as
criterion 1 to 8 in sections 1.11 to 1.18 respectively. The term general
exemption criteria is mentioned in a number of sections within schedule
1 as a compliance requirement for exemption from the need to seek development
approval. Section 1.10 lists the different criterion requirements that may be
called-up in specific exemption criteria for development. For example the
criterion for s1.29 requires that the ‘designated development complies
with the general exemption criteria that are applicable to the
development’ whereas s1.100B requires that the development
‘...complies with section 1.14 (Criterion 4- heritage and tree
protection).
Changing design practices has meant that it is no longer
appropriate to exclude the use of these materials or finishes in all
circumstances. For example, environmental design practices consider that there
are environmental benefits in having a white roof for instance.
Clause
6 – Schedule 1, section 1.13 —omits section 1.13 of schedule 1
from the regulation as a consequence of clause 5 of this amending regulation
that removes section 1.10(c) of schedule 1 from the regulation.
Clause 7 – Schedule 1, section 1.122 (1) definition of
exterior item, new paragraph (h) —inserts “a pole or
post” in the definition of exterior item in section 1.22 (1)
of schedule 1 of the regulation. This is because of the insertion of new section
1.26A in schedule 1 by clause 8 below which refers to a pole or
post.
Clause 8 – Schedule 1, new section 1.26A –
inserts a new exemption for external shades. Subsection 1.26A(1) defines
external shade as a device to shade a window or door externally
and includes a pole, post or any other item associated with an external shade. A
designated development for an external shade is exempt if:
(a) the external
shade, when opened to its full capacity, is within the boundary of the block;
and
(b) the designated development complies with the general exemption
criteria that are applicable to the development.
Clause 9 –
Schedule 1, new section 1.30A — inserts a new exemption in schedule 1
of the regulation relating to resealing existing driveways. A designated
development for resealing an existing driveway is exempt development provided
concrete, bitumen, pavers including bricks, timber and/or grass is used and it
complies with the applicable general exemption criteria. This clause extends the
benefit of the exemption already in place for existing school sites (see
s.1.99R) to the community in general.
Clause 10 – Schedule 1,
section 1.31 (1) definition of prescribed general exemption criteria
– substitutes a new definition of prescribed general exemption
criteria in section 1.31 of schedule 1 which removes the reference to
section 1.13. This is consequent upon the removal of section 1.13 by clause 6 of
this amending regulation.
Clause 11 – Schedule 1, section
1.45(1)(c) – substitutes a new section 1.45(1)(c) in schedule 1
because of the insertion of new section 1.45(1A) by clause 12 below.
Clause 12 – Schedule 1, new section 1.45(1A) — inserts
new section 1.45(1A) in schedule 1. The new section maintains the present
exemption but also allows for a higher building to be built provided certain
parameters are met. Section 1.45(1A) sets out those parameters. The previous
height restriction of 3 metres made it difficult to have a pitched roof and
encouraged flat roofs which may not be as attractive or appropriate and may
adversely affect the amenity of a neighbourhood. Allowing the roof height to be
4 metres above natural ground level in certain circumstances provides greater
flexibility and opportunity for appropriate development.
The diagram at
the end of this Explanatory Statement shows the intent of the provision and what
the provision will not allow.
Clause 13 – Schedule 1, new
section 1.45 (2) definition of size limitation, paragraph (a) —
This is an editorial amendment. It changes the wording from “not more
than” to “less than”.
Clause 14 – Schedule 1,
section 1.45(2) definition of size limitation, paragraph (c) —
substitutes 50m2 for 36m2 in section 1.45(2)(c) to provide consistency between
section 1.45 and 1.46.
Clause 15 – Schedule 1, section 1.46(b)
— substitutes section 1.46(b) in schedule 1. The sub-section maintains
the present exemption but also allows for a higher building to be built provided
certain parameters are met. The parameters are provided for in new section
1.46(2) (refer to Clause 17).
Clause 16 – Schedule 1, section
1.46(c)(i) — substitutes 50m2 for 25m2 in section 1.46(c)(i) to
provide consistency between section 1.45 and 1.46.
Clause 17 –
Schedule 1, new section 1.46(2) — inserts new section 1.46(2) in
schedule 1. The new section maintains the present exemption but also allows for
a higher building to be built provided certain parameters are met. Section
1.46(2) sets out those parameters. The previous height restriction of 3 metres
made it difficult to have a pitched roof and encouraged flat roofs which may not
be as attractive or appropriate and may adversely affect the amenity of a
neighbourhood. Allowing the roof height to be 4 metres above natural ground
level in certain circumstances provides greater flexibility and opportunity for
appropriate development.
The diagram at the end of this Explanatory
Statement shows the intent of the provision and what the provision will not
allow.
Clause 18 – Schedule 1, new section 1.47(c)
substitutes section 1.47(c) in schedule 1. The sub-section maintains the
present exemption but also allows for a higher building to be built provided
certain parameters are met. The parameters are provided for in new section
1.47(2) (refer to Clause 19).
Clause 19 – Schedule 1, new
section 1.47(2) — inserts new section 1.47(2) in schedule 1. The new
section maintains the present exemption but also allows for a higher building to
be built provided certain parameters are met. Section 1.47(2) sets out those
parameters. The previous height restriction of 3 metres made it difficult to
have a pitched roof and encouraged flat roofs which may not be as attractive or
appropriate and may adversely affect the amenity of a neighbourhood. Allowing
the roof height to be 4 metres above natural ground level in certain
circumstances provides greater flexibility and opportunity for appropriate
development.
The diagram at the end of this Explanatory Statement shows
the intent of the provision and what the provision will not
allow.
Clause 20 – Schedule 1, section 1.51(2), note 3
— omits note 3 as a consequence of the removal of section 1.13 by
clause 6 above.
Clause 21 – Schedule 1, section 1.54 (1) (c)
– omits section 1.54 (1)(c) as a consequence of the removal of section
1.13 by clause 6 above.
Clause 22 – Schedule 1, section 1.55(1)
and note – omits section 1.55(1) and note as a consequence of the
removal of section 1.13 by clause 6 above.
Clause 23 – Schedule
1, section 1.55(2)(b) and (c ) — substitutes new section 155(2) (b)
and (c) to alter the height limitation on water tanks from 2.45metres to 3
metres and allows tanks to be installed in front yards provided the whole tank
is buried under the ground.
Clause 24 – Schedule 1, section
1.55 (2) (e) except note — substitutes a new section 1.55 (2)(e) which
is a consequence of the removal of section1.13 by Clause 6 above and the removal
of section 1.55(1) by clause 22 above.
Clause 25 – Schedule 1,
section 1.56(c) – omits section 1.56(c) to remove the size limitation
on ponds. This provides consistency with the exemption for swimming pools which
do not have a size limitation.
Clause 26 – Schedule 1, new
section 1.61 — inserts new section 1.61 in schedule 1 which provides a
designated development for building or a flag pole is exempt development
if:
(a) the height of the flag pole is not more than 10 metres above finished
ground level; and
(b) the designated development complies with the general
exemption criteria that are applicable to the development.
This clause
extends the exemption already available for the installing of a flag pole on
existing school sites (s1.99L) to the general community. There is minimal
potential for adverse impacts from flag poles and any noise pollution from
lanyards striking the flagpole is dealt with by legislation regulating
noise.
Flag pole includes a lanyard, flag or other item
associated with a flag pole.
Clause 27 – Schedule 1, section
1.66 – substitutes a new section 1.66 consequent upon the removal of
section 1.13 by Clause 6 above.
Clause 28 – Schedule 1, sections
1.75 to 1.78 – substitutes new sections 1.75 to 1.78 to remove the
reference in those sections to the general exemption criteria. These sections
deal with lease variations and the types of things covered by the general
exemption criteria are either considered as part of the development application
process to vary the lease (controls in the Territory Plan guide decisions on
multiple-occupancy for instance – s1.17) or are inappropriate (for example
s1.12 – plumbing and drainage clearances).
Clause 29 –
Schedule 1, section 1.85(1) — substitutes a new section 1.85(1)
consequent upon the removal of section 1.13 by Clause 6 above.
Clause
30 – Schedule 1, section 1.100(1)(c)(ii) – substitutes a new
section 1.100(1)(c)(ii) to include the words “(other than rule 33 and rule
66)”.
Clause 31 – Schedule 1, section 1.100(4)
definition of prescribed general exemption criteria, paragraph (a)
– omits section 1.100(4) definition of prescribed general
exemption criteria, consequent upon the removal of section 1.13 by
clause 6 above.
Clause 32 – Schedule 1, section 1.101 (1)
– substitutes a new section 1.101(1) in schedule 1. Presently, the
demolition of a building or structure is exempt if the building or structure, if
built, would be exempt (the demolition of a single dwelling is also exempt - see
section1.100B). Clause 32 amends section 1.101(1) to expand the provision and
provides that the demolition of a class 10 building or structure is exempt
development as long as the building or structure is in a residential zone and it
complies with section 1.14 (Criterion 4 – heritage and tree protection).
This allows for the demolition of a class 10 building or structure on
residential land even if the parameters of the building or structure mean that
it does not meet the criteria to be “exempt development, if built”.
Clause 33 – Schedule 1, section 1.103 (1)(c) and notes
— substitutes a new section 1.103(1) (c ) and notes in schedule 1
providing a new DA exemption in relation to utility and communications services.
Clause 33 adds to the exempt category the installation of minor infrastructure
not higher than 2 metres above natural ground level.
Clause 34
– Schedule 1, new section 1.110 and new section 1.111 — inserts
a new section 1.110 in the schedule providing a new exemption in relation to
rebuilding damaged buildings and structures. If a building or structure was
built in accordance with a development approval but it is later damaged, this
exemption permits the same building or structure in accordance with the previous
development approval to be built without a development application.
Damage is defined as “...an act or event, other than an act
done by the lessee of the land with the intention of causing
damage.”
New section 1.111 is inserted and provides that a
designated development in relation to a bore is exempt development if the
development complies with the general exemption criteria that apply to the
development. This DA exemption was inadvertently not included when the
regulation was first made.
Diagram – showing permissible outcomes – refer clause 12,
17 & 19
3m max above NGL
300
wall
class 10
roof
boundary
NGL
NGL line (4m max follow
through)
4m max
4m
max
4m max
4m max
roof can follow
NGL line
class 10 wall
Diagram – showing NOT permissible outcome – refer clause 12,
17 & 19
3m max above NGL
wall
class 10
roof
boundary
NGL
NGL line (4m max follow
through)
4m max
4m
max
4m max
4m max
roof can follow
NGL line
class 10 wall
Not allowed - the wall at the
junction with the roof on the boundary side is greater than 3m