Exemption declaration

An Exemption Declaration is a type of planning approval.

They are given to single dwelling homes that follow controls in the relevant development controls , except for one or more minor differences in certain provisions. This is where a control isn't complied with, but only to a minor extent.

An exemption declaration can save you the time and money required for a development application (DA).

Section 1.131 of the Planning (Exempt Development) Regulation 2023 allows the Territory Planning Authority to issue an exemption declaration, allowing work to continue being exempt from requiring a DA. You can only apply for, or use, an exemption declaration for certain controls.

To approve an exemption declaration the Territory Planning Authority must be satisfied that:

• the non-compliance is minor
• the non-compliance won’t adversely affect anyone other than the homeowner
• the non-compliance won’t increase the environmental impact of the dwelling or alteration, and
• information on the development has been provided to the neighbours.

Development Controls

Development controls are instruments made under the Planning (Exempt Development) Regulation 2023 (the Exempt Development Regulation). They outline all of the requirements single dwelling houses need to meet in order to DA exempt, which includes including setbacks, solar building envelopes, private open space, for courtyard walls and more.

There are development controls that apply to all single dwelling housing works as well as district specific development controls. All relevant development controls need to be considered and complied with for the works to be DA exempt.

Eligibility

You can only apply for an exemption declaration if the departure relates to one of the following, as identified in the relevant development controls:

• front, side or rear setback requirements
• building or solar envelope
• courtyard wall setback requirements
• dimensions of minimum Private Open Space (POS) requirements.

The below describes what is generally not considered minor for assessment under the exemption declaration process.

Provision and guidance

Below is guidance on what would generally be considered to be a minor departure for the relevant provision. Please note, this is guidance only and does not guarantee an exemption declaration will be given.

4 – Private open space (minimum dimension requirement only)

Anything more than a 2500mm departure in depth from the required dimension will generally be not minor.

5 – Principal private open space (minimum dimension requirement only)

Anything more than a 2500mm departure in depth from the required dimension will generally be not minor.

8 - Building envelope

Any change to height more than 1000mm from the building envelope is generally not minor (unless the departure is for the side of a parapet wall).

9 - Front boundary setbacks

Anything more than a 35% departure from the required setback is likely to be not minor.

10 - Side and rear boundary setbacks

Anything more than a 35% departure from the required setback is likely to be not minor.

11 – Allowable encroachments – setbacks

Anything more than a 35% departure from the required setback is likely to be not minor.

12 - Solar building envelope

Any change to height more than 850mm from the solar building envelope is generally not minor (unless the departure is for the side of a parapet wall).

If the South neighbouring residential block has a built dwelling or approved plans:

• Any change to the height more than 700mm from the solar building envelope will generally not be minor (unless the departure is for the side of a parapet wall).

If the South neighbouring residential block is vacant and doesn't have approved plans:

• Any change to height more than 600mm in the Primary Building Zone and 400mm in the Rear Building Zone from the solar building envelope will generally not be minor (unless the departure is for the side of a parapet wall).

Note: Overshadowing a room that people live in or a neighbouring block's Principal Private Open Space (PPOS) will be an adverse effect.

15 – Courtyard walls (setback requirement only)

Any departure within 600mm of a front boundary generally will be not minor.

Ineligible departures

• Some types of departures can’t be considered through an exemption declaration. Some of these include:
• not following block specific requirements in the applicable district controls .
• not providing the required area or percentage of private open space (POS) required
• changing the location of POS, for example relocation from the north side of a building to the south side
• exceeding the maximum building height
• blocks listed on the Heritage Register (unless you meet the requirements for heritage block exemptions), and
• some developments exempt under Schedule 1 of the Regulation, for example retaining walls under 400mm high in front of a house. EPSDD can't consider departures to these exemptions under the Exemption Declaration process.

Note: general exemption criteria in the regulations need to be met to submit an exemption declaration application.

What you need to apply

You must include the following documents in your application for an exemption declaration. You must upload all relevant plans and supporting documents that identify the departure/s as one single PDF:

1. An online application form including all proposed rule departures and the relevant codes.
2. A letter of authorisation [255.5 KB] signed by the lessee/s (owners) of the land and the applicant.
3. A set of plans that identify the departure(s) with correct dimensions of the encroachments, the distance and areas of non-compliance (in red hatching). See examples below. You'll need to include the following plans:
   1. Site Plan that only shows the relevant setback and open space departures.
   2. Floor Plan that only shows the relevant setback and open space departures.
   3. Elevation Plan and Section Plan that only shows the relevant solar building envelope and building envelope departures.
4. Shadow Diagrams for solar building envelope departures. These must highlight in red:
   1. shadows at 9 am, 12 pm and 3 pm on the winter solstice
   2. the extent of the extra shadow cast due to the encroachment/s
   3. that these shadows won’t overshadow rooms people live in or nominated PPOS of a neighbouring residential block.
5. A completed summary of written information to adjoining resident form [308.3 KB] as evidence that you have let your next-door neighbours know about the development. This meets 1.18 of the Exempt Development Regulation.

Consulting your neighbours

Before you submit your exemption declaration application, make sure you give your neighbours written information about the proposal. This may include leaving the information at their residence, like in the mailbox.

Written information must include:

• Completed Information for adjoining resident form [182.3 KB]
• site plans and elevation plans for the proposal
• shadow diagrams of the encroachment (if the proposal does not comply with the solar building envelope), and
• any additional information required by the territory planning authority and included in a notice published on the website.

Getting your neighbours' support

It’s recommended that you get a letter of support or set of plans endorsed by your neighbours for proposed departures from the solar envelope. Solar departures that approach the maximum impacts described in the tables above won't be approved without support.

Your neighbours can use the below as a guide:

If you seek your neighbour's support, they must sign and date the letter and plans with their full names and contact details.

Contacting your neighbours

The Territory Planning Authority can't help you get your neighbour's contact details, but you can try:

• a title search on the ACT Land Information System
• speak to the builder on site (if under construction), or
• speak to the estate developer.

Checklist

It is important to make sure you submit everything required so your application is accepted and assessed without delay. Use the below checklist before you lodge an Exemption Declaration application:

• complete online application form
• letter of authorisation [255.5 KB] signed by the lessee/s
• the application form specifies:
• the relevant provisions you are seeking a departure from and
• the departure sought (including the dimension)
• A completed summary of written information to adjoining resident [308.3 KB] as evidence that you have let your next-door neighbours know about the proposed development. Information to neighbours can be provided with a completed information to adjoining resident form [182.3 KB].
• a letter of support from the affected neighbour/s is strongly recommended for Solar Envelope and Unscreened Element side/Rear Setback departures if relevant.
• relevant plans showing the departure/s (only on the correct drawings)
• shadow diagrams for all Solar Building Envelope departures
• it is recommended that a building certifier check you've included all relevant departures. This will save you time, money and avoid submitting more than one application. You won't be able to change your application once it is submitted. If you need to make a change, you will need to submit a new application.
• a building certifier confirms the proposal follows all other planning requirements. The Authority will not identify non-compliances or legal requirements other than what is included in your application.
• you can submit supporting information that better supports your case for an exemption. This can include photographs of the site, a letter of support from a neighbour or location plans.

How to apply

Lodge your application online.

Fees

There is a flat fee to apply for exemption declarations, charged on application. Find out about fees and charges.

Assessment and processing

Exemption declarations are assessed on a case-by-case basis against the eligibility criteria.

The Territory Planning Authority will not recommend how to reduce a proposed departure, if they think it isn’t minor. They will only assess and finalise decisions based on the original proposal submitted.

Timeframe

The Territory Planning Authority must decide to issue or refuse a declaration within 10 working days.

This timeframe may change if the authority needs more information to determine the application.

After you apply

Amending an application

There is no process to amend exemption declarations. This means that you must include all relevant encroachments in your initial application. You will need to submit a new application for any more encroachments.

Appealing a decision

Exemption declaration decisions are final. If approved, you can proceed to develop your block under the approval issued. An approved exemption declaration will last for a period of 3 years. Further time may be allowed if provided in writing by the Territory Planning Authority.

Under the legislation, you won’t be able to review or appeal the decision to the ACT Civil and Administrative Tribunal (ACAT). If you want to challenge a decision, you will need to seek independent legal advice.

If your application for exemption declaration is refused, you’ll need to either:

• lodge a Development Application for assessment, or
• amend the plans and submit another application.

Related content

• Single dwellings
• Amend or appeal an application
• Lodge a DA
• Check if you need a DA
• Check if you need a BA
• Build or renovate
• Buy