Exempt development in the ACT

Section 7 of the regulation exempts development that complies with Schedule 1, and development that would comply apart from a permitted construction tolerance. Schedule 1 is long, with parts for non-habitable buildings, single dwellings, signs, community gardens, schools and more. Each specific exemption sits inside a common frame of general criteria in Part 1.3, and the specific section says which criteria are switched off.

The seven criteria cover easement and access clearances, plumbing and drainage clearances, heritage, tree, environment and conservation matters, compliance with the lease, no multiple occupancy dwellings, affected residential premises and compliance with other applicable exemptions. Criterion 5 is the shortest and the most consequential for housing: development must not increase the number of dwellings on a block to 2 or more dwellings.

Criterion 5 is why no secondary residence and no dual occupancy is ever exempt in the ACT. The fast track is for one dwelling per block and the structures around it. Criterion 4, compliance with the lease, is the other frequent stopper, because a use or a building the Crown lease does not authorise cannot be exempt however small it is.

The most significant exemption is section 1.130. Building a single dwelling, or altering one, on a block in a residential zone is exempt if the dwelling will be the only dwelling on the block, if on a preliminary block it is built by the lessee of the holding lease, if the dwelling as built complies with a relevant residential zones single dwelling housing development control, and if the information requirements in section 1.18 have been met.

The development control is the hinge. Section 14 of the regulation lets the Territory Planning Authority declare a control for single dwelling housing in residential zones by notifiable instrument. That declared control holds the setback, envelope, site coverage, private open space and similar numbers a house must meet to be exempt. A house that meets the control needs no DA. A house that does not needs a DA or the declaration described next.

Section 1.130 does not include a dwelling with a party wall, so an attached pair is outside it. A single dwelling in a residential zone that meets the control is one of the few substantial buildings in Australia that can be built with no planning application at all, which is why most new detached houses in Canberra's greenfield suburbs proceed on building approval alone.

Section 1.131 creates a middle path that has no NSW equivalent. A single dwelling that would be exempt under section 1.130 apart from an encroachment beyond a required setback, beyond the building envelope, or in a few similar respects can still be exempt if the Territory Planning Authority declares that the non-compliance is minor. The ACT Government calls this an exemption declaration and describes it as a type of planning approval.

The declaration is not a DA. There is no public notification and no merit assessment of the whole house, only a decision on whether the specific encroachment is minor and free of adverse effects on neighbours or the outcomes the control protects. It is the ACT's answer to the house that is a few hundred millimetres inside a setback.

For anything larger, or for any second dwelling, the pathway is the development application under section 166 of the Planning Act, assessed against the Territory Plan's outcomes and requirements.

Division 1.4.2 of Schedule 1 exempts non-habitable buildings and structures. Section 1.42 covers a roofed class 10a building that is enclosed or open on one side, such as a shed or garage. Its height must not exceed 3m above datum ground level, or 4m where the building stays under a 30° plane from 3m at the boundary. It must sit within the solar building envelope, meet the setback requirement and stay within the size limitation for the block.

The size limitation scales with the block: a plan area of not more than 10m² on a block under 500m², 25m² on a block of 500m² to under 600m², and 50m² on a block of 600m² or more. The setback requirement puts a building of up to 10m² behind the building line, and a larger one behind the building line and at least 15m from the front boundary. Only one such structure may sit within 1.5m of a side or rear boundary unless section 1.41 applies.

Decks, verandahs, unroofed structures, pools, fences, carports and many other items each have their own section with their own limits. The ACT Government's self-check page summarises the approach: some projects may not need a DA if they meet the regulation's conditions, and a building certifier can provide a formal exemption notice where confirmation is wanted.