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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (NO 2) (NO 8 OF 2009)
2009
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Planning and Development
Amendment Regulation 2009 (No 2)
SL2009-
8
EXPLANATORY STATEMENT
Circulated by authority of the
Minister for Planning
Mr
Andrew Barr MLA
PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2009 (No
2)
EXPLANATORY STATEMENT
Overview
The changes made to the Planning and
Development Regulation 2008 (the regulation) by this amending regulation are
a continuation of the wider planning system reforms launched by the ACT Minister
for Planning in 2004.
The main aim of the reforms 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 of low significance to be exempt
from requiring a development approval (DA) (see section 133). The facility
exists in the Act to remove the requirement for development approval for those
projects where the development approval process adds relatively little value,
for example, for new single residences in Greenfield sites and small structures
such as sheds, garages and pergolas. This is because there is little value added
in requiring a DA in such cases. The DA process typically verifies that the
development is compliant with the relevant codes but does not enhance the
quality of the proposed development. The DA process does not alter the proposed
design.
This amending regulation adds exemptions for specified building
work on existing school sites. It does this by amending schedule 1 of the
regulation. Schedule 1 is made under section 20 of the regulation. The exempting
of a range of developments at public and non-public schools in this amending
regulation are in addition to a number of exemptions already set out in schedule
1 of the regulation.
This amending regulation includes DA exemptions
for school buildings such as libraries, halls and gymnasiums and for things
other than buildings such as flag poles, bike enclosures, etc.
The
exemptions apply as follows:
1. DA exemptions for main
buildings and minor alterations at an existing school campus:
• Apply to both private and public schools;
• Apply for 4 years (unless specifically extended by the ACT Legislative Assembly) and are subject to review;
• If a school project does not meet the physical parameters required for the DA exemption set out in this amending regulation, a DA is required. However, a separate regulation will specify these DAs as requiring only public notice to adjoining premises (limited public notification) which means the timeframe to respond is reduced from 15 working days to 10 working days. This is done by inserting the list of developments or activities relevant for schools into schedule 2 of the regulation. A consequence of this is that proposals that only require limited public notification are not subject to third-party appeals. The Act provides that third-party appeals can only be made if the applicant can demonstrate ‘material detriment’ as defined in the Act. The provisions that insert these school related developments or activities into schedule 2 will automatically expire after 4 years;
• If a school project does not meet one of the general exemption
criterion set out in ss1.10-1.17 of schedule 1 to the regulation, a DA is
required (eg if the proposal contravenes the Heritage Act (s1.14 of schedule 1)
then a DA is required)
The reason for a time-limit (4 years) for the
exemption for main school buildings (refer clause 4, s1.99C) is related to the
source of funding for these sorts of projects. It is anticipated that
Commonwealth and Territory funding sources will be available for government
school projects of this type with the intention that the funding be spent in the
short term over the next 4 years for the benefit of schools and the economy of
the Territory as a whole. In some cases, failure to utilise the funds could
risk loss of the funds resulting in reduced benefits to schools and the economy.
The provision automatically expires on 31 March 2013, unless continued by
Legislative Assembly resolution.
The proposed exemption for minor
alterations that do not increase the gross floor area by more than 5% (refer
clause 4, s1.99D) is to provide for those minor types of works not explicitly
covered by specific clauses within these proposed exemptions where these are of
such a nature that they would not impact on adjoining premises. The scope of
this exemption is relatively narrow and as such is unlikely to have any negative
impact on adjoining premises. The provision automatically expires on 31 March
2013, unless continued by Legislative Assembly resolution.
2. DA
exemptions for school projects other than main buildings or minor alterations,
for example, bike enclosures, flag poles
• Apply to both private and public schools;
• Apply indefinitely (with the exception of 1.99C and 1.99D) but must be reviewed by the planning and land authority after 4 years;
• If a school project does not meet the physical parameters required for the DA exemption set out in this amending regulation, a DA is required. However, a separate regulation will specify these DAs as requiring only public notice to adjoining premises (limited public notification) which means the timeframe to respond is reduced from 15 working days to 10 working days. This is done by inserting the list of developments or activities relevant for schools into schedule 2 of the regulation. A consequence of this is that proposals that only require limited public notification are not subject to third-party appeals. The Act provides that third-party appeals can only be made if the applicant can demonstrate ‘material detriment’ as defined in the Act. The provisions that insert these school related developments or activities into schedule 2 will automatically expire after 4 years;
• If a school project does not meet one of the general exemption
criterion set out in ss1.10-1.17 of schedule 1 to the regulation, a DA is
required (eg if the proposal contravenes the Heritage Act (s1.14 of schedule 1)
then a DA is required)
The proposed exemptions for projects such as
installing flag poles are to apply indefinitely, subject to review. Such
projects are relatively minor in comparison with school main buildings and as
such, it is appropriate for these matters to be exempt irrespective of the
immediate issue of funding. As a result, these exemptions apply indefinitely
with the proviso that their operation is to be reviewed by the authority after a
period of 4 years.
All of the proposed exempt developments or activities
are subject to review (s1.99B) and requires the authority to review the
operation of the division not later than 30 September 2012. The authority
must prepare a notice to the Minister on the findings of the review which
includes a summary of community comment on the operation of the
division.
For further information about the government funding, refer to
the Regulatory Impact Statement for this amending regulation.
Clause 1 – Name of Regulation –states the name of the
regulation, which is the Planning and Development Amendment Regulation 2009
(No ).
Clause 2 – Commencement –states that the
regulation commences on a day fixed by the Minister by written
notice.
Clause 3 – Legislation amended – states
that the regulation amends the Planning and Development Regulation
2008.
Clause 4 – Schedule 1, new division 1.3.6A
–inserts a new Division 1.3.6A Exempt developments – schools
in Schedule 1.
Subdivision 1.3.6A.1 Preliminary
1.96
Definitions – div 1.3.6A - sets out the definitions for the division.
It defines commencement day, existing ground level
and existing school. An existing
school means 1 of the following that exists on the commencement
day:
(a) a government school within the meaning of the Education Act
2004;
(b) a non-government school within the meaning of the Education
Act 2004;
(c) a childcare centre licensed under the Children and Young
People Act 2008, section 747, primarily for the education of young children.
Young child is defined in section 733 (3) of the
Children and Young People Act 2008.
1.97 Meaning of
existing school campus – regulation - states that in this regulation
existing school campus means the grounds, including the boundary,
of an existing school on the commencement day.
1.98 Application
– div 1.3.6A - states that the division applies to a development or
other activity only if it is on an existing school campus. The policy behind
limiting the division to existing school campuses is to ensure the exemptions
are reasonably defined and contained and because the funding source for the
developments presently applies to existing schools only.
1.99
General exemption criteria - states that unless otherwise stated in a
provision, a development to which this division applies must comply with the
general exemption criteria in schedule 1 except criterion 8 in section 1.18.
Generally, for a development to be exempt from requiring a development approval,
it must comply with each relevant general exemption criterion in sections 1.10
to 1.18 of schedule 1, and any other criterion in part 1.3 of the schedule that
applies to the development. Criteria 1.10 to 1.17 refer to easement clearances;
plumbing and drainage clearances; certain exterior finishes in residential
zones; heritage and tree protection; and compliance with lease and other DAs,
and multiple occupancy requirements. Criterion 8 states that a development must
comply with any other criteria in part 1.3 (Exempt developments) that apply to
the development.
Many of the criteria in part 1.3 are intended to apply
primarily to residential and rural developments etc and are not relevant to
schools. For this reason, a development in this division need not comply with
criterion 8 in section 1.18.
1.99A Activities not developments
– states that an activity mentioned in this division that is not a
development is not taken to be a development only because it is exempted under
this division. This means that a development is only a development if it comes
within the definition of development in section 7 of the Act and just because an
activity is mentioned in this division does not mean it is necessarily a
development within the meaning of section 7 of the Act.
1.99B Review
of division – specifies that the planning and land authority (the
authority) must review the operation of this division not later than 30
September 2012. After the review, the authority must prepare a notice stating
that the authority has reviewed the division and the authority’s findings
on the review. The review must include a summary of any community comment on
each type of exemption, and the authority must assess the performance of each
exemption. The authority must give the notice to the Minister and the notice is
a notifiable instrument. This section expires on 31 March 2013. This allows the
authority 6 months to prepare the notice after which time the section is no
longer required and so expires.
Subdivision 1.3.6A.2 Exemptions
– schools
1.99C Schools – new buildings or alterations
to buildings – prescribes some of the technical parameters which must
be complied with to make development in relation to building a new building on
an existing school campus exempt from requiring development approval. It
specifies that a designated development for building a new building or altering
or demolishing an existing development (and carrying out any related earthworks
or other constructions work on or under the land) is exempt development if the
building is:
(a) (i) a class 3 building (eg a dormitory); or
(ii)
a class 9b building (eg a hall, gymnasium); and
(this exemption is
intended to also cover, for example, new school libraries, meeting halls,
classrooms, auditoriums and similar)
(b) The building is not within 6
metres of the boundary of a residential zone; and
(c) the height of the
building is not more than:
(i) if the building is within 30 metres of the
boundary of a residential zone – 6 metres above existing ground level;
or
(ii) in any other case, 12 metres above existing ground level.
These parameters minimise overlooking opportunities and other adverse
impacts on the privacy of the adjoining land users.
As explained above
(refer Section 1.99), for a development to be exempt from requiring a
development approval, it must comply with each general exemption criterion in
schedule 1 as well as the above criteria.
This section expires on 31
March 2013 unless, before the expiry date, the Legislative Assembly, by
resolution, continues it. Section 1.99B requires the authority to review
the operation of this and other exemptions in this regulation by 30 September
2012 and report the results to the Minister. This section together with
section 1.99C provide for review and possible continuation. If this
section is no longer required, it will simply expire.
Subsection
(5) states that is the sub-section continues under sub-section (3), sub-section
(2) to (4) and this sub-section expire on the day after the day the notice of
the resolution is notified. If the exemption is not continued by
Assembly resolution, the whole section expires on 31 March 2013.
Section 1.2 of schedule 1 defines the meaning of the term
designated development, in relation to land, for the purposes of
schedule 1. The term covers building, altering or demolishing a building or
structure on land, carrying out earthworks or other construction work on or
under the land, or carrying out work that would affect the landscape of the
land.
Class 3 and Class 9b buildings are defined in the Building Code of
Australia, a copy of which can be inspected at the office of the authority
during business hours. The Dictionary to the regulation states that
class, for a building or structure, means the class of building or
structure under the building code.
1.99D Schools – minor
alterations - prescribes some of the technical parameters which must be
complied with to make development in relation to a minor altering of a building
(and carrying out any related earthworks or other construction work on or under
the land) on an existing school campus exempt from requiring development
approval.
Such minor alteration is exempt development if the development
will not increase the gross floor area of the building by more than
5%.
Unlike the other sections in subdivision 1.3.6A.2, this section
expires on 31 March 2013 and only applies if no other exemption in schedule 1
applies to the proposed development.
Subdivision 1.3.6A.2 Exemptions
– schools applies and the building is not within 6 metres of the
boundary of a residential zone.
1.99E Schools – entrances -
prescribes some of the technical parameters which must be complied with to make
development in relation to building a school entrance on an existing school
campus exempt from requiring development approval. Section 1.98F (1) defines
school entrance as meaning a public entrance to the school whether
freestanding or part of a building; and includes any associated structure (for
example, porticos, awnings, canopies, landings). A designated development for
building or installing a school entrance (and carrying out any related
earthworks or other construction work on or under the land) is exempt
development if:
(a) the entrance:
(i) does not have a roof; or
(ii) is not enclosed on all sides; and
(b) the height of the
entrance is not more than 6 metres above existing ground level.
1.99F
Schools – verandahs etc – prescribes some of the technical
parameters which must be complied with to make development in relation to
building or installing a verandah on an existing school campus
exempt from requiring development approval. A designated development for
building or installing a verandah (and carrying out any related earthworks or
other construction work on or under the land) is exempt development
if:
(a) the height of the verandah is not more than 6 metres above
existing ground level if the verandah is within 30 metres of the boundary of a
residential zone or, in any other case, 12 metres above existing ground
level;
(b) the verandah is not within 6 metres of the boundary of a
residential zone; and
(c) the verandah is unenclosed on at least 1
side.
Under subsection 1.98F(1) verandah includes a balcony, awning,
portico or landing.
1.99G Schools – signs – prescribes
some of the technical parameters which must be complied with to make development
in relation to putting up, attaching or displaying a sign or altering or
removing a sign, on an existing school campus exempt from requiring development
approval. A designated development for putting up, attaching or displaying a
sign, or altering or removing a sign is exempt development if:
(a) the
sign is intended to display only school information; and
(b) the sign in
no higher than 3.6 metres above existing ground level; and
(c) the sign
is not both illuminated and animated (eg flashing neon).
Note 1 sets out
that a sign may also be exempt under division 1.3.3.
Subsection 1.98G (2)
specifies what school information includes.
1.99H
Schools – playground and exercise equipment – specifies that a
designated development for building or installing playground and exercise
equipment on an existing school campus is exempt development. Such equipment
includes swings, monkey bars, slippery dips, cubby houses, ropes and
nets.
1.99I Schools – fences – prescribes some of the
technical parameters which must be complied with to make development in relation
to putting up a fence on an existing school campus exempt from requiring
development approval. A designated development for building or installing a
fence (and carrying out any related earthworks or other construction work on or
under the land) on an existing school campus is exempt development
if:
(a) the height of the fence is not more than 4 metres above existing
ground level if the fence is around or partly around a playing field or in any
other case, 2.4 metres above existing ground level; and
(b) no vertical
component of the fence is spiked.
Subsection 198I (1) states that a
fence includes:
(a) a fence around the boundary, or part
of the boundary, of an existing school campus; and
(b) a fence within an
existing school campus, including a fence around, or partly around, a playground
or playing field; or between buildings; and
(c) a gate that forms part
of, or functions as, a fence.
Subsection 198I (3) states that playing
field means an open space that is designed, or can be used, for playing or
practising organised sport.
1.99J Schools – shade structures
– prescribes some of the technical parameters which must be complied with
to make development in relation to putting up a shade structure on an existing
school campus exempt from requiring development approval. A designated
development for building or installing a shade structure (and carrying out any
related earthworks or other construction work on or under the land) is exempt
development if:
(a) the height of the shade structure is not more than 10
metres above existing ground level; and
(b) the plan area of the shade
structure is not more than 200 metre square; and
(c) the shade structure
is unenclosed on at least 2 sides.
1.99K Schools – covered
external walkways – prescribes some of the technical parameters which
must be complied with to make development in relation to building or installing
a covered walkway on an existing school campus exempt from requiring development
approval. A designated development for building or installing a covered walkway
(and carrying out any related earthworks or other construction work on or under
the land) is exempt development if:
(a) the height of the walkway is not
more than 6 metres above existing ground level if the walkway is within 30
metres of the boundary of a residential zone; or in any other case, the height
of the walkway is not more than 12 metres above existing ground level; and
(b) the walkway is unenclosed on at least 2 sides.
1.99L
Schools – flag poles – specifies that a flag pole
includes a lanyard, flag or other item associated with a flag pole and that a
designated development for building or installing a flagpole is exempt
development if the height of the flag pole is not more than 10 metres above
existing ground level.
1.99M Schools – water tanks –
specifies that a designated development for building or installing a water tank
(and carrying out any related earthworks or other construction work on or under
the land) is exempt development if the water tank has a diameter of 8 metres or
less.
1.99N Schools – landscape gardening – prescribes
some of the technical parameters which must be complied with to make development
in relation to landscape gardening on an existing school campus exempt from
requiring development approval. A designated development for landscape gardening
(other than construction of a retaining wall), and carrying out any related
earthworks or other construction work on or under the land, is exempt
development if:
(a) the landscape gardening is defined landscaping;
and
(b) if the landscape gardening affects an existing public pedestrian
access way, footpath or bicycle path – the landscape gardening maintains
existing public access to the access way, footpath or bicycle path.
Pursuant to subsection 1.98N (2), section 1.11 (Criterion 1 - easement
and other access clearances) does not apply to the landscape gardening in (b)
unless the landscape gardening involves the construction or installation of a
structure. This means a designated development for (b) does not need to comply
with criterion 1 of the general exemption criteria provided the landscape
gardening does not involve the construction or installation of a
structure.
Subsection 198N (3) defines defined landscaping
as meaning landscaping in relation to 1 or more of the following:
(a)
a footpath;
(b) a landing;
(c) artificial grass;
(d) any other
landscape structure (other than a retaining wall) or earthworks, if the vertical
distance from the top of the structure or earthworks to existing ground level is
not more than:
(i) if the top of the structure or earthworks is above
existing ground level – 0.4m; or
(ii) if the top of the structure or
earthworks is below finished ground level – 1.2m.
The Note
indicates that Finished ground level is defined in the Territory
Plan (Vol 2, Part 3 definitions)
1.99O Schools – car parks
– prescribes some of the technical parameters which must be complied with
to make development in relation to car parks on an existing school campus exempt
from requiring development approval. A designated development for building or
installing a car park (and carrying out any related earthworks or other
construction work on or under the land) on existing ground level is exempt
development if the car park does not reduce the area of a playing field. In this
section, playing field means an open space that is designed or can
be used for playing organised sport.
1.99P Schools – bicycle
enclosures – prescribes some of the technical parameters which must be
complied with to make development in relation to bicycle enclosures on an
existing school campus exempt from requiring development approval. A designated
development for building or installing a bicycle enclosure is exempt
development.
1.99Q Schools – toilet and change room
facilities - prescribes some of the technical parameters which must be
complied with to make development in relation to toilet and change room
facilities on an existing school campus exempt from requiring development
approval. A designated development for building or installing a toilet facility
or change room facility (and carrying out any related earthworks or other
construction work on or under the land) is exempt development if the facility is
not within 6 metres of the boundary of a residential zone.
1.99R
Schools – driveways - prescribes some of the technical parameters
which must be complied with to make development in relation to driveways on an
existing school campus exempt from requiring development approval. A designated
development for sealing or resealing a driveway (and carrying out any related
earthworks or other construction work on or under the land) is exempt
development if 1 or more of the following materials is used:
(a) concrete
(including coloured or patterned concrete);
(b) bitumen;
(c) pavers
including bricks;
(d) timber;
(e) grass, including stabilising
treatment.
1.99S Schools – security cameras -
specifies that installing a security camera on an existing school campus is
exempt development.
1.99T Schools – external lighting
- specifies that installing external lighting, including security lighting and
flood lighting (other than flood lighting for a playing field) on an existing
school campus is exempt development.
1.99U Schools – demountable
and transportable buildings- prescribes some of the technical parameters
which must be complied with to make development in relation to building or
installing demountable or transportable buildings on an existing school campus
exempt from requiring development approval. A designated development for
building or installing a demountable or transportable building (and carrying out
any related earthworks or other construction work on or under the land) is
exempt development if the building is not within 6 metres of the boundary of a
residential zone.
1.99V Schools – class 10b structures - -
prescribes some of the technical parameters which must be complied with to make
development in relation to building or installing class 10b structures on an
existing school campus exempt from requiring development approval. A designated
development for building or installing a class 10b structure (and carrying out
any related earthworks or other construction work on or under the land) is
exempt development if the structure is not within 6 metres of the boundary of a
residential zone.
Examples of class 10b structures include retaining
walls, a freestanding wall, mast or antenna, and a swimming pool.
Note 1
indicates that a class 10b structure may also be exempt under subdivision
1.3.2.3 and Note 2 indicates that a fence may also be exempt under section
1.98J.
Class 10b structures are defined in the Building Code of
Australia, a copy of which can be inspected at the office of the authority
during business hours. The Dictionary to the regulation states that
class, for a building or structure, means the class of building or
structure under the building code.
The exemption only applies if no other
exemption in Subdivision 1.3.6A.2 Exemptions – schools applies.
Clause 5 – Schedule 1, section 1.101(b)(i) and note
–substitutes new section 1.101(b)(i) and note. This is merely to
ensure consistency of language between sections 1.100 and
1.101.
Clause 6 – Dictionary, new definitions –
inserts new definitions in the regulation because of the additions made to
schedule 1 by this amending regulation. The new definitions
are:
commencement day, for schedule 1, division 1.3.6A
(Exempt developments—schools)—see schedule 1, section
1.96.
existing ground level, for schedule 1, division 1.3.6A
(Exempt developments—schools)—see schedule 1, section
1.96.
existing school, for schedule 1, division 1.3.6A (Exempt
developments—schools)—see schedule 1, section
1.96.
existing school campus—see schedule 1, section
1.97.