Development Regulation changes – what they mean for you
Posted on July 28, 2015
While we have been waiting for the draft legislation in response to the 22 recommendations made by the Expert Panel on planning reform, in June 2015 some interim amendments to the Development Regulations (2008) have come into operation.
In the main these amendments are minor and provide clarification and simplification of a number of Regulation requirements. However, in respect of site contamination audit requirements, representors being heard and the grant of a lease or licence over part of a non-residential allotment, the changes are more significant.
Schedule 4(2B(4) amendments – site contamination and Development Plan complying development:
- Previously, under Schedule 4(2B)(4) if there was known site contamination as a result of a previous use or activity on the land, or the Relevant Authority had reason to believe that the land has been the subject of site contamination from a previous use or activity, the complying status of the development in respect of Development Plan consent would not apply unless the applicant had obtained a site contamination audit report under Part 10A of the Environment Protection Act (other than if the previous use or activity was for residential purposes). This exclusion has now been broadened to include site contamination in the vicinity of the land. This means that a new dwelling that would otherwise have been a complying development may no longer be complying if there has been site contamination from a previous use or activity on land nearby. The Relevant Authority is only required to have a belief that there may have been such a use or activity in the nearby vicinity to trigger the exclusion. The implications of this amendment are potentially significant and may mean fewer developments are classed as a complying development.
Regulation 35(e) amendments – rights of representors to be heard:
- The rights of representors to be heard in relation to a written representation for Category 2 and 3 developments under Regulation 35(e) have been amended to place a positive obligation on them to express their desire to be heard. Under the amendments, if a representor does not state their desire to be heard, it will be assumed that they don’t want to be.
Schedule 3(3)(2)(b) amendments – lease or licence over part of non-residential land:
- Land divisions by lease or licence over part of a non-residential allotment are no longer "developments” requiring approval under the Development Act. This means that a non-residential land division where there is a right to occupy part only of the allotment under a lease or licence, can now exceed six years without it being classed as development under the Development Act.
Other relevant amendments include:
- Under Regulation 82, where a building classification is given to a building, the section 66(4) notice must now specify the maximum number of occupants, and if the building has more than one classification, the part or parts of the building to which each classification relates and the classifications currently assigned to other parts of the building.
- Under Regulation 76C(1) brush fences can no longer be constructed within three metres of any external wall of a Class 1 or 2 building, unless the external wall of the relevant building is fire resisting in accordance with the Building Code fire separation provisions.
- Under Schedule 1A(5), a swimming pool is now classed as development (and capable of approval) if ancillary to either an approved dwelling erected on the site or an approved dwelling to be erected on the site.
- Under Schedule 9 if ancillary to a dwelling, all carports, garages, sheds, pergolas, verandahs, fences, swimming pools, spa pools and outbuildings are now Category 1 developments. The previous height, frontage, boundary distances, floor area and building length exceptions have now been removed.
- Under Schedule 3(4)(g)(iv) and schedule 3A(4)(f)(ii) a masonry fence or any part of a fence which is masonry (for example masonry piers or columns) exceeding one metre in height from the lower of the two adjoining finished ground levels is no longer development.
- Under Regulation 92(6) any private certification material required to be provided to the Relevant Authority may now, with the approval of the Relevant Authority, be provided by fax or other electronic transmission.
- Referrals to the Commissioner of Highways under Schedule 8(4) have been expanded in respect of advertising displays abutting arterial roads.
If you would like any further information concerning the Development Regulation amendments please contact a member of our team.