Encroachment declarations

In the development process there can be instances where it is appropriate for a development to encroach into adjoining Territory land however, due to the zoning of the adjoining land, the use (of the encroachment) is prohibited.

Section 158 in the Planning Act 2023 (the Act) enables an applicant to seek a declaration from the Territory Planning Authority (the Authority) that such an encroachment is considered to be minor and can therefore be the subject of a development application.

An application for a declaration can only be made where:

1. the encroachment is a minor part of the development
2. undertaking the proposal in relation to the adjoining land would enable a more logical and appropriate development than if there were no encroachment
3. the proposed use of the land would:
   • not detract from the amenity of the surrounding area
   • promote better land management
   • not unreasonably restrict public access to other land
4. the Authority is not prohibited from granting by direct sale a lease over the encroachment.

If the adjoining land is unleased land, the application must include:

1. written consent by the custodian of the land to the encroachment
2. a copy of any written information given to the custodian, with each page—
   • signed by the custodian
   • numbered by stating the page number and the total number of pages provided.

A decision on the declaration is to be made within 10 working days after a person applies for a declaration, however the requirement to make a decision does not lapse if the 10-day time limit is not met.

If a declaration is made the Authority must publish the declaration on the authority’s website and the applicant must obtain a lease or licence over the land. A decision whether to grant a declaration is not a reviewable decision.

Once a declaration is made:

1. the Territory Plan can be amended by minor amendment under section 88 of the Act to change the boundary of the zone consistent with the development proposal.
2. a development application can be lodged for the proposal and its assessment can commence as if the Territory Plan had been amended (though the application cannot be decided until the variation takes effect).

Approved encroachment declarations