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PLANNING AND DEVELOPMENT AMENDMENT REGULATION 2010 (NO 1) (NO 8 OF 2010)
2010
THE LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
Circulated by authority of the
Minister for
Planning
Mr Andrew Barr MLA
Planning and Development Amendment Regulation 2010 (No
1)
Explanatory Statement
This Planning and Development Amendment Regulation 2010 (No 1) (the
amending regulation) amends the Planning and Development Regulation 2008
(the regulation) under section 426 of the Planning and Development Act
2007 (the Act).
Some of the amendments are substantive, some are
consequential and others are for clarification purposes.
Clauses 31, 7,
and 12 and 15 make more substantive amendments to the regulation.
Clauses 8 to 11, 13, 19, 20 and 21, 23 to 25, 27 to 30, 32 and 33 are
amendments as a consequence of other amendments made by the amending
regulation.
Clauses 4 to 6, 14, 16 to 18, 22, 26 and 34 clarify existing
sections of the regulation.
Overview of substantive
amendments
Clause 31
Clause 31 of the amending
regulation amends an existing provision in Schedule 1 (s.1.90 Minor Public
Works) and creates a new exemption for public art (proposed new section
1.90A).
Minor public work s.1.90
The wording around the existing
criteria is clarified and the parameters of the criteria expanded (refer s.1.90,
schedule 1). The expansion of the public works exemption is the result of
operational experience about those sorts of public works which are done by or
for the Territory and because of their more minor nature, do not require
development approval. Other amendments put the public works exemption in
plainer language to make the exemption more easily accessed and understood.
Public artwork s.1.90A
Artwork, by its nature, has proved difficult
to assess within the normal planning processes and rules and criteria of the
Territory Plan. Therefore, a new exemption has been drafted. The new exemption
has strict parameters including that the artwork must be funded partly or wholly
by the Territory and that TAMS (Territory and Municipal Services) has agreed to
the location of the public artwork.
Clause 7
Clause 7
substitutes new sections 300 and 301 and inserts new sections 302 to
305.
It is possible to apply to the Planning and Land Authority (the
authority) for a "controlled activity order" under section 350 of the Act. A
controlled activity order may require someone to stop unlawful development or to
comply with the conditions of a development approval, or to carry out demolition
of an unlawful structure, etc (refer s358(3)). The authority may also make a
controlled activity order on its own initiative under section 353 of the Act.
Sections 351(4) and 354 of the Act state that if the authority fails to
decide an application for a controlled activity order or fails to issue an order
by the end of the period prescribed by regulation, the application for a
controlled activity order is deemed to be refused or the authority is taken to
have decided not to make the order.
New sections 300 and 303 ensure
consistency in the time period of deemed refusal and also extend the time period
from the present 20 working days. This is because operational experience has
shown the 20 working days did not give the authority sufficient time to properly
consider its position.
There is presently no provision in the Act or
regulation to cover the scenario where a controlled activity order is sought and
the relevant activity is, or becomes, the subject of a development application
for development approval. The authority should be able to await the outcome of
such an application before making a decision on the controlled activity order.
For example, if a development application is approved and the relevant activity
is authorised by a development approval then there would be no reason to issue a
controlled activity order because the activity was made lawful by the
development approval. This becomes a little more complicated again when the
outcome on a development application is delayed due to appeal. New sections
301-2 and 304-5 cover the various scenarios.
Clause 12
Clause
12 inserts a new subsection in criterion 1 of the general exemption criteria in
schedule 1.
The existing wording of the provision (s.1.11, schedule 1)
meant that a proponent could not take advantage of a relevant exemption for
their development if the development would be located in an easement (because
the development would not comply with one of the general exemption criteria).
Operational experience, however, suggested that in a lot of cases the utility
provider (ACTEW) would be supportive of the development encroaching into the
easement.
The amendment allows the person who has ownership or control
of an easement or proposed easement, or utility infrastructure access or
protection space, to agree in writing to the location of a building or part of a
building in the easement (or in the utility infrastructure access or protection
space). The amendment allows a proponent to access the relevant exemption if
they have the consent of the owner that the development can encroach or be in
the easement.
Clause 15
Clause 15 changes the general
exemption criteria in section 1.14 of schedule 1 to provide any development,
other than class 10 buildings or structures (for instance, sheds, pergolas), on
heritage listed property or property the subject of a heritage agreement, cannot
be DA exempt.
Previously, the criteria merely stated that a development
must not contravene the Heritage Act 2004. In practice, this relied upon
building certifiers to make a determination as to whether or not the development
contravened the Heritage Act. This has proved problematical. The amendment
makes it clear that any development except for minor things such as a shed,
clotheslines, etc cannot be DA exempt if it is on a heritage object or place.
However, maintenance of a heritage object or place remains DA exempt under
schedule 1, section 1.23.
Outline of
Provisions
Clause 1 – Name of Regulation –
states the name of the regulation, which is the Planning and Development
Amendment Regulation 2010 (No 1).
Clause 2 –
Commencement – states that the regulation commences on the day
after its notification day.
Clause 3 – Legislation
amended – states that the regulation amends the
Planning and
Development Regulation 2008.
Clause 4 – New
s110(1)(aa) – inserts new section (aa) in section 110(1) to
include additional criteria for a direct sale of contiguous unleased public land
that the proposed use of the land be compatible with ACT or Commonwealth
government policies applicable to the proposed use.
Clause 5
– New section 122(1)(aa) – inserts new section (aa) in
section 122(1) to include additional criteria for a direct sale of contiguous
unleased land other than public land that the proposed use of the land be
compatible with ACT or Commonwealth government policies applicable to the
proposed use.
Clause 6 – Section 175(2)(b) –
amends section 175(2)(b) to remove the words “(if any)”. These words
cannot be included because under section 175(1), the planning and land authority
(the authority) must remit all or part of a change of use charge for a variation
of a lease and therefore, there must always be an amount to be
remitted.
Clause 7 – Sections 300 and 301 –
substitutes sections 300 and 301 of the regulation with new sections 300 to
305.
It is possible to apply to the authority for a "controlled activity
order" under section 350 of the Act. A controlled activity order may require
someone to stop unlawful development or to comply with the conditions of a
development approval, or to carry out demolition of an unlawful structure, etc
(refer s358(3)).
Section 351(4) of the Act states that if the Authority
fails to decide the application for a controlled activity order by the end of
the period prescribed in the regulation, the application for a controlled
activity order is deemed to be refused.
The authority may also make a
controlled activity order on its own initiative. The process is much the same
as an application by a person under section 350(1) except:
(1) The
process starts with the authority issuing a "show cause notice” (s353(2)).
(2) section 354 of the Act states that if the authority fails to decide
whether to issue a controlled activity order or not by the end of the period
prescribed in the regulation, the authority is deemed to have decided to not
make the controlled activity order.
The amending regulation overcomes
the following difficulties with the present provisions:
(1) One time
period applies for the authority to decide whether to issue a controlled
activity order applied for by a member of the public, that is, 20 working days
from date of application (s351(4) of the Act and present s300 of the regulation)
and another time period applies for the same decision when the controlled
activity order is sought under the authority's own initiative, that is, 20
working days from date of issue of the show cause notice (s354(2) of the Act and
present s301 of the regulation). The time permitted for decision is effectively
much shorter in the former case. This inconsistency is not warranted because
the nature of the decisions and the workload involved is much the same. New
sections 300 and 303 extend the periods for a deemed refusal of an application
for a controlled activity order and a deemed decision not to make a controlled
activity order from 20 working days to 20 working days after the 10 working day
period within which the lessee may give the authority written reasons.
(2) The previous period of time was not sufficient to allow the
authority to complete its administrative processes and properly consider
applications and representations, if any, from lessees. Show cause notices have
a 10 working day response period pursuant to section 350(4)(b) and section
353(4)(a). This meant the authority only had 10 working days of the 20 working
days to make a decision.
(3) There is presently no provision in the Act
or regulation to cover the scenario where a controlled activity order is sought
and the relevant activity is or becomes the subject of a development application
for development approval. The authority should be able to await the outcome of
such an application before making a decision on the controlled activity order.
For instance, if a development application is approved and the relevant activity
is authorised by a development approval then there would be no reason to issue a
controlled activity order because the activity was made lawful by the
development approval. This becomes a little more complicated again when the
outcome on a development application is delayed due to appeal. Sections 301 and
302 and 304 and 305 cover the various scenarios.
Section 301 and new
section 302
Sections 301 and 302 set-up the parameters for what happens
with an application for a controlled activity order when the development
application (relevant to the order) has either been approved (section 301) or
refused (section 302).
If a development application (made after a show
cause notice) is approved then the period for deemed refusal is 10 working days
otherwise it is 20 working days. These amendments respond to amendments made to
section 300.
New section 303
New section 303 operates in the
same way as amended section 300 but deals with a deemed decision not to make
a controlled activity order as opposed to a deemed refusal (refer section
300).
Sections 304 and 305
Sections 304 and 305 set-up the
parameters for what happens with an application for a controlled activity order
when the development application (relevant to the order) has either been
approved (section 304) or refused (section 305).
If a development
application made in relation to a controlled activity is approved, the period
for deemed refusal is 10 working days, otherwise it is 20 working days. These
amendments respond to new section 303 and mirror new sections 301 and 302.
Clause 8 – Section 400(1) – substitutes a new
section 400(1) to remove the reference to the street furniture agreement as it
is no longer needed. The street furniture agreement was previously referred to
in section 1.90 of schedule 1 but amendments to section 1.90 by this amending
regulation have removed any reference to the street furniture agreement from the
schedule (see Clause 31).
Clause 9 – Section 400(3),
definition of street furniture agreement – omits the
definition of street furniture agreement from section 400(3) as it is no longer
needed. The street furniture agreement was previously referred to in section
1.90 of schedule 1 but amendments to section 1.90 by this amending regulation
have removed any reference to the street furniture agreement from the schedule
(see clause 31).
Clause 10 – Schedule 1, section
1.4(2)(b) – substitutes a new section 1.4(2)(b) in schedule 1 as a
consequence of the amendment to the section 1.15 heading by this amending
regulation (see clause 16).
Clause 11 – Schedule 1, section
1.10(d) – substitutes a new section 1.10(d) in schedule 1 as a
consequence of the amendment to the section 1.15 heading by this amending
regulation (see clause 16).
Clause 12 – Schedule 1, sections
1.11(1A) and (1B) – inserts section 1.11(1A) and 1.11 (1B) in
section 1.11 of schedule 1. Clause 12 inserts a new subsection in criterion 1 of
the general exemption criteria in schedule 1 that allows the person who has
ownership or control of an easement or proposed easement, or utility
infrastructure access or protection space, to agree in writing to the location
of a building or part of a building in the easement. Thus, a development on an
easement (or in a utility infrastructure protection space) may not be DA exempt
but may become so if the consent of the owner of the easement (or utility
infrastructure protection space) is obtained.
Clause
13
Clause 13 amends the definition for utility infrastructure. This
is required because of the amendments made through clause 12.
Clause 14
Clause 14 inserts a new note to guide the
reader to where technical codes and rules (under the Utilities Act 2000)
may be found.
Clause 15 – Schedule 1, new sections 1.14(2)
and (3) – inserts new section 1.14(2) and (3) in section 1.14 of
schedule 1. Clause 15 changes the general exemption criteria in section 1.14 of
schedule 1 to provide any development, other than class 10 buildings or
structures (for instance, sheds, pergolas), on heritage listed property or
property the subject of a heritage agreement, cannot be DA exempt.
Previously, the criteria merely stated that a development must not
contravene the Heritage Act 2004. Operational experience relied upon
building certifiers to make a determination if a development contravened the
Heritage Act and this has proved problematical. Clause 15 makes it clear that
any development except for minor things such as a shed, clotheslines, etc cannot
be DA exempt if it is on a heritage object or place. Clause 21 of the amending
regulation makes it clear that maintenance of a heritage object or place is
still DA exempt.
Clause 16 – Schedule 1, section 1.15
heading – substitutes a new heading for section 1.15 of schedule 1
which removes the word “other”. This is to clarify that lease and
development approvals are not related which was implied by the use of the word
“other” in the heading.
Clause 17 – Schedule 1,
section 1.15(1)(a) – substitutes a new section 1.15(1)(a) in
schedule 1 for clarification purposes. The new subsection makes it clear
that a development must not be inconsistent with a condition of a development
approval for any development on the block including the relevant development.
Clause 18 – Schedule 1, section 1.23 (except heading)
– omits everything before paragraph (a) in schedule 1, section 1.23
except the heading and substitutes the words “A designated development
(other than a development to which section 1.22 applies) for the maintenance of
a building or structure
if-“. The amendment clarifies that the
section does not apply to development to which section 1.22 applies. For
instance, clause 18 clarifies that painting the exterior of a building to change
its appearance is covered by section 1.22 and painting the exterior for purely
maintenance reasons is covered by section 1.23.
Clause 19 –
Schedule 1, section 1.23(a), example 2 – omits example 2 from
section 1.23(a) of schedule 1 because example 2 refers to roof tiles which is
"roofing" which is covered by schedule 1, s1.22 (1) (d) and s1.22 (2) (ii) as a
result of the amendment to section 1.23 by this amending regulation (see clause
18).
Clause 20 – Schedule 1, section 1.23(a), note 1
– omits the words “or roofs” from Note 1 of section
1.23(a) of schedule 1 because "roofing" is covered by schedule 1, s1.22 (1) (d)
and s1.22 (2) (ii) as a result of the amendment to section 1.23 by this amending
regulation (see clause 18).
Clause 21 – Schedule 1, section
1.23(b) – inserts the words “, other than section 1.14 (2)
(Criterion 4 – heritage and tree protection)” after the word
“criteria”. Clause 15 of this amending regulation ensures any
development except for minor things such as a shed, clotheslines, etc cannot be
DA exempt if it is on a heritage object or place. The amendment to section
1.23(b) ensures maintenance of a heritage object or place is still DA exempt as
long as the maintenance does not involve changing the kind of material used for
the part of the building or structure to which the maintenance
relates.
Clause 22 – Schedule 1, section 1.30(1)(b)
– inserts the words “across the road verge” after the
words “2 driveways” in section 1.30(1)(b) for clarification
purposes.
Clause 23 – Section 1.55(d) – omits
section 1.55(d) from schedule 1 because s1.55 is relocated to subdivision
1.3.2.4 and renumbered s1.62 by this amending regulation (see clause 26) because
water tanks are not a class 10 building or structure. For similar reasons, the
criteria in s1.55 (d) is not applicable and can be omitted.
Clause 24 – Schedule 1, section 1.57 (1)(d)
– omits section 1.57(1)(d) from schedule 1 because s1.57 is relocated
to subdivision 1.3.2.4 and renumbered s1.64 by this amending regulation (see
clause 26) because animal enclosures are not a class 10 building or structure.
For similar reasons, the criteria in s1.57 (1) (d) is not applicable and can be
omitted.
Clause 25 – Schedule 1, section
1.58(1)(d) – omits section 1.58(1)(d) from schedule 1 because
s1.58 is relocated to subdivision 1.3.2.4 and renumbered as s1.64A by this
amending regulation (see clause 26) because clotheslines are not a class 10
building or structure. For similar reasons, the criteria in s1.58(1)(d) is not
applicable and can be omitted.
Clause 26 – Schedule
1, sections 1.55 to 1.58 (as amended) – relocates sections 1.55 to
1.58 (as amended by this amending regulation - see clauses 23 -25) from
Subdivision 1.3.2.3 Class 10b structures to a new Subdivision
1.3.2.4 for clarity reasons and renumbers them as sections 1.62 to 1.64A.
The sections are relocated because water tanks (s1.55), external ponds (s1.56),
animal enclosures (s.1.57) and clotheslines (s1.58) are not class 10b structures
and are more appropriately placed in their own subdivision entitled Other
Structures.
Clause 27 – Schedule 1, new
subdivision 1.3.2.4 heading – inserts the heading Other
structures in the new subdivision 1.3.2.4 which is created by this amending
regulation (see clause 26).
Clause 28 – Schedule 1, section
1.65 – substitutes a new section 1.65 in schedule 1 to change the
reference to minor public works to public works. This is because section 1.90 is
amended by this amending regulation to apply to public works and not just minor
public works (see Clause 31).
Clause 29 – Schedule 1,
section 1.77 – omits section 1.77 from schedule 1 because these
types of matters are dealt with under new section 1.112 inserted by this
amending regulation (see Clause 34). The omission of s1.77 and the insertion of
s1.112 clarifies that subdivisions under the Unit Titles Act 2001
are not a lease variation.
Clause 30 – Schedule 1,
section 1.78 – omits everything before paragraph (a) and
substitutes new words as a result of the omission of section 1.77 by this
amending regulation (see Clause 29).
Clause 31 – Schedule 1,
section 1.90 – substitutes a new section 1.90 which expands and
clarifies the exemption for public works. It is no longer limited to minor
public works and the new section provides a better guide as to what public works
are covered by the exemption.
A designated development for public works
carried out by or for the Territory is exempt development if the development
does not require an environmental authorisation or environmental protection
agreement under the Environment Protection Act 1997 and the designated
development complies with the general exemption criteria that are applicable to
the development. Designated development is defined in section 1.2 of schedule 1
and Part 1.2 of schedule 1 sets out the general exemption criteria.
Subsection 1.90(2) provides meanings for terms used in the section
including ancillary sporting structure, bicycle parking facility, landscaping,
playing field and public works.
Public works means:
(a) Installation
or maintenance of street and park furniture (that is, the conventional equipment
of urban streets and parks); ancillary sporting structures (eg goal posts,
fencing) on or beside playing fields; water tanks; and temporary structures for
an event (eg marquee, portable toilet, stage, tent)
(b) Construction or
maintenance of a footpath, bicycle path, bicycle parking facility, walking track
or other pedestrian area
(c) Maintenance of a road, car park, stormwater
drainage and flood mitigation structure, and water quality treatment
device
(d) Temporary flood measures
(e) Bushland regeneration,
landscaping, gardening, tree planting, tree maintenance, tree removal or fire
fuel reduction, construction or maintenance of a fire trail.
Clause 31
also inserts a new section 1.90A in schedule 1 which provides an exemption from
development approval for public art works that meet the criteria set out in the
section. Subsection 1.90A (3) states that public artwork means an
artwork to be displayed in a place open to and accessible by the public (for
example, sculpture, statue, structure, painting).
Designated development
for the installation of a public art work is exempt from development approval
if:
(a) the development is funded completely or partly by the
Territory
(b) the public artwork will be located on territory land or land
occupied by the Territory
(c) the chief executive of the administrative unit
responsible for municipal services (presently Territory and Municipal Services)
has agreed, in writing, to the location of the public artwork
(d) the artwork
is not more than 6 metres in height unless it is on an arterial road in which
case the height limit is 12 metres
(e) the development does not require an
environmental authorisation or environmental protection agreement under the
Environment Protection Act 1997
(f) the public artwork is not a
habitable structure
(g) the designated development complies with the general
exemption criteria, other than section 1.17 (Criterion 7 – no multiple
occupancy dwellings) that are applicable to the development
Clause
32 – Schedule 1, section 1.91 – omits section 1.91 of
schedule 1 as a consequence of the amendments to s1.90 by this amending
regulation (see clause 31). The exemption in section 1.91 is covered by the new
section 1.90.
Clause 33 – Schedule 1, section 1.99M, note
– substitutes a new note in section 1.99M of schedule 1 as a
consequence of an amendment to s1.55 by this amending regulation (see Clause 26
which changes the number of section 1.55 to s1.62).
Clause 34
– Schedule 1, new section 1.112 – inserts a new section
1.112 in schedule 1 for clarity reasons. Subdividing land under the Unit
Titles Act 2001 was previously dealt with in s1.77 of Division 1.3.4 of
schedule 1. This Division is concerned with lease variations which are exempt
development. Subdivisions under the Unit Titles Act are not a lease variation.
Clause 34 moves the exemption to a more appropriate place in schedule 1 and
clarifies that the exemption applies to the subdivision of land under a unit
title application under the Unit Titles Act.