The exemption declaration (exemption) process was introduced in April 2009 in response to a development industry request for a way to better deal with single residential development proposals which would be compliant with the rules in the Single Dwelling Housing Development Code (the Code) of the Territory Plan, except for one or more minor departures.
The Planning and Development Regulation 2008 was amended to include a provision for the planning and land authority to consider applications for a minor departure of the distances specified in the Code for building setbacks, dimensions of private open space and/or building envelopes, and to issue an ‘Exemption Declaration’ in respect of that departure. Since then, over 1250 applications have been processed.
A key feature of the exemption declaration process is the 10 working day turnaround time for a determination. The number of exemption applications being lodged has increased significantly over the past 12 months since the inception of the exemption declaration process.
In order to better assist the timely determination of exemption applications, there are a few points to remember when lodging your application:
- Always have a letter of authority signed by all of the relevant Lessee’s
- The tests that the planning and land authority will apply to your application are:
- Is the non-compliance minor?
- Will the non-compliance adversely affect someone other than the applicant?
- Will the non-compliance increase the environmental impact of the dwelling more than minimally?
- Your proposal must satisfy all of these tests to be approved.
- Clearly specify the relevant rule of the Code, and the departure sought (including the dimensions) on the application form. Clearly show these dimensions on the plans;
- In relation to seeking a departure for the amount of private open space provided, the rules regarding the location of the private open space (e.g. relocation from the north side of a building to the south side), or the private open space’s area as a percentage of the block, rather than its dimension, cannot be considered;
- An exemption declaration application cannot be considered for a block that is listed in the ACT Heritage Register. Refer to http://www.environment.act.gov.au/heritage/heritage_register/suburb to check if a block is on the Heritage Register.
- An exemption declaration cannot be granted for departure to a rule that is a mandatory rule in the Code;
- An exemption declaration application is to be only in relation to a rule in the Code for setbacks, building envelopes and/or dimensions of open space. The application cannot be in relation to a departure from the specific exempt development provisions listed in Schedule 1 of the Planning and Development Act 2008;
- Although an exemption declaration may be granted for a particular encroachment/s, Building Certifiers still need to be satisfied that the proposal is rule compliant in all other respects, and that other statutory requirements are met, before they issue a building approval. These requirements include approvals from utility entities, and any approvals necessary under the Tree Protection Act 2005 for regulated trees on site or on adjacent sites, that are affected by the proposed development. For a definition of a regulated tree, refer to Part 2 “Important Terms” of the Tree Protection Act 2005 at: http://www.legislation.act.gov.au/a/2005-51/current/pdf/2005-51.pdf
- Where appropriate, you may include supporting information, such as photos of the site, shadow diagrams, and location plans to better support your case for an exemption.
- Please note, in the event the planning and land authority identifies an element of the proposed development that departs from a mandatory rule, the exemption declaration will not be approved.