Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010 (ACT)

Case

Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010

A2010-24

Contents

Page

Part 1Preliminary

  1. Name of Act  2

  2. Commencement  2

Part 2Building Act 2004

  1. Legislation amended—pt 2  3

  2. New part 2A  3

  3. Application of pt 3 to building work


    Section 15, new note  9

  4. Building approval applications


    Section 26 (2), note  9

  5. Applications for building approval—certifier may require further information


    Section 26A (3) (b)  10

  6. Contents of request for further information


    Section 26B (4), note  10

  7. New section 27A  10

  8. Issue of building approvals


    Section 28 (2) (a), new note  11

  9. Approval requirements


    New section 29 (1) (g) (ia)  11

  10. Section 29 (1) (g), new example and note  12

  11. New section 29 (6A)  12

  12. Contents of request for further information


    Section 32B (4), note  12

  13. Notification by certifier of possible noncompliant site work


    New section 50A (2A) and (2B)  13

  14. Site work without adequate development approval—people


    New section 50B (3A) and (3B)  13

  15. Site work without adequate development approval—partners


    Section 50C  14

  16. New section 50C (3A) and (3B)  14

  17. Carrying out building work in contravention of s 42


    Section 51 (4)  14

  18. Section 51 (5) (b)  15

  19. New section 51 (6)  16

  20. Regulation-making power


    Section 152 (6)  16

  21. New part 15  17

  22. Dictionary, note 2  18

  23. Dictionary, new definitions  18

Part 3Construction Occupations (Licensing) Act 2004

  1. Legislation amended—pt 3  19

  2. What is a building surveyor?


    New section 9 (1) (aa)  19

  3. New section 9 (1A)  19

  4. Section 9 (3), new definition of exemption assessment work               19

  5. What is a works assessor?


    Section 14A (3), definition of works assessment work, except note       20

  6. What is an operational Act?


    Section 16  20

  7. Rectification orders—exercise of registrar’s powers


    Section 33A (b)  20

  8. Considerations for deciding under s 34 and s 35


    Section 36 (3) (b)  21

  9. Registrar’s functions


    New section 104 (3)  21

  10. New part 16  22

Part 4Construction Occupations (Licensing) Regulation 2004

  1. Licence applications—Act, s 17 (3)


    Section 5 (h)  24

  2. Section 8 heading  24

  3. Section 8 (1)  24

  4. Particulars in register


    Section 9 (1) (c)  25

  5. New section 18A  25

  6. Schedule 1, new part 1.9  26

  7. Schedule 1, new part 1.9  26

Part 5Planning and Development Act 2007

  1. Legislation amended—pt 5  28

  2. What is an exempt development?


    Section 133, notes  28

  3. Consideration of development proposals


    Section 138 (4) (a), new note  28

  4. New division 7.3.1A  29

  5. Offence to develop without approval


    Section 199 (6)  35

  6. Regulation-making power


    Section 426 (5)  36

  7. New chapter 16  37

  8. Dictionary, new definitions  38

Part 6Unit Titles Act 2001

  1. Legislation amended—pt 6  39

  2. Unit title applications—general requirements


    New section 17 (5) (c)  39

  3. Unit title assessment reports


    Section 22B (2), example  39

  4. Unit title assessment report applications—unit title assessor may require further information


    New section 22C (3) and (4)  39

Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010

A2010-24

An Act to amend legislation about construction occupations, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010.

  2. Commencement

    (1)Part 1 commences on this Act’s notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    (2)Part 4 (other than section 42) and part 6 commence on the commencement of the Construction Occupations Legislation Amendment Act 2010, part 3 (Unit Titles Act 2001).

    (3)The remaining provisions commence on a day fixed by the Minister by written notice.

    NoteA single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

    (4)If a provision of this Act has not commenced within 1 year beginning on its notification day, it automatically commences on the first day after that period.

    (5)The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply to this Act.

Part 2Building Act 2004

  1. Legislation amended—pt 2

    This part amends the Building Act 2004.

  2. New part 2A

    insert

Part 2AExemption assessments

  1. Purpose of exemption assessment B notices

    (1)An exemption assessment may relate to building work that is to be done or has been done.

    (2)An exemption assessment B notice in relation to building work that is to be done certifies that the work is, or is not, exempt from all or part of this Act.

    NoteIf an exemption assessment B notice certifies that building work is exempt from all or part of this Act, it must also state what provisions of this Act the building work is exempt from and why, and anything else prescribed by regulation (see s 14B (2)).

    (3)An exemption assessment B notice in relation to building work that has been done certifies that the work is, or is not, exempt from all or part of this Act based on whether the work was exempt at the time it was done, or is currently exempt.

  2. Exemption assessment applications

    (1)The owner of a parcel of land may apply, in writing, to a building surveyor for an assessment (an exemption assessment) of whether building work to be carried out, or carried out, on the parcel of land is exempt from all or part of this Act.

    Note 1Building work may be exempt from all or part of this Act if the work is exempt from this Act, or part of this Act.  For exempt buildings and building works, see the Building (General) Regulation 2008, s 6, s 7 and sch 1.

    Note 2Applying for an exemption assessment is not a requirement of the building approval or development approval process (see s 14A and Planning and Development Act 2007, s 138C). If a person believes that building work is exempt, the person need not apply for an exemption assessment from a building surveyor.

    (2)The application must be accompanied by the number of copies of the plans relating to the development work prescribed by regulation.

    (3)The application must contain, or be accompanied by, any other details or material prescribed by regulation.

    NoteIf a form is approved under s 151 for an application, the form must be used.

    (4)A regulation may prescribe information required to be shown in plans under subsection (2).

14AExemption assessment not required for building approval

(1)An exemption assessment is not a requirement of the building approval process.

(2)A building surveyor may issue an exemption assessment B notice to the owner of a parcel of land only if the owner has applied to the building surveyor for an exemption assessment.

(3)A building surveyor must not refuse to issue a building approval on the ground that the applicant for the approval has not applied for an exemption assessment B notice.

14BExemption assessments and notices

(1)This section applies if—

(a)the owner of a parcel of land applies to a building surveyor for an exemption assessment under section 14; and

(b)the building surveyor agrees to provide the exemption assessment.

(2)The building surveyor must—

(a)undertake the exemption assessment; and

(b)issue a notice (an exemption assessment B notice) stating—

(i)if any building work is exempt from all or part of this Act—

(A)the building work that is exempt; and

(B)the provisions of this Act that the building work is exempt from and why; and

NoteFor building work that is completed, see also s (3).

(ii)any building work that is not exempt from any part of this Act; and

(iii)anything else prescribed by regulation; and

NoteThe building surveyor may refuse to issue a notice if the building surveyor does not have enough information (see s 14E).

(c)give the exemption assessment B notice to the owner; and

(d)within 5 days after the day the building surveyor issues the notice—give a copy of the notice to the construction occupations registrar.

(3)If the building work that is the subject of the application has been completed and the building surveyor certifies that the building work is exempt because the building work was exempt when carried out, the exemption assessment B notice must also include the dates on which the building surveyor has based the assessment that the building work was exempt.

(4)If, after taking reasonable steps, the owner cannot find a building surveyor who will agree to provide an exemption assessment, the owner may apply to the construction occupations registrar to appoint a building surveyor to undertake the exemption assessment and issue an exemption assessment B notice to the owner.

14CExemption assessment applications—request for further information

(1)This section applies if—

(a)a building surveyor requires further information for an exemption assessment under section 14B; and

(b)the owner of the parcel of land and the building surveyor have not agreed that the building surveyor will obtain the further information; and

(c)the building surveyor believes on reasonable grounds that the further information will help the building surveyor to prepare the assessment.

(2)The building surveyor may, by written notice, ask the owner to give the building surveyor stated further information in relation to the application.

(3)This section does not entitle a building surveyor to require—

(a)photographs to be taken by someone other than the owner of the parcel of land; or

(b)photographs to be taken using equipment other than equipment of the owner’s choice; or

(c)further information if—

(i)the building surveyor has, or has reasonable access to, suitable information that allows the building surveyor to decide the application without personally inspecting the land where the building work is to be carried out; or

(ii)a territory law requires the building surveyor to personally obtain or be given the information.

Examples—suitable information building surveyor has or has reasonable access to

1     The website provides aerial photographs and topographical information including ground contours for some ACT areas.  If the land to which an application relates is covered by the website, the photographs and contours have sufficient information, and are accurate and recent enough, to decide the application in relation to tree and ground‑height related matters, the building surveyor may not require further information or documents by way of photographs or topographical information in relation to trees and ground heights.

2     A building surveyor may verify land tenure and permit and statutory approval matters by contacting the statutory custodians of the information to a sufficient degree to decide the application in relation to those matters.  The building surveyor may not require further information in relation to those matters.

3     The land to which an application relates is covered by but, because the slope of the land to be built on is steeper than would be adequately shown on the website, the building surveyor does not have suitable information to allow the building surveyor to decide the application without personally inspecting the land.  Another website has some topographical information on the land, but it is not of sufficient resolution, or recent enough, to be relied on by the building surveyor in relation to ground heights to decide the application.  The building surveyor may require further information in relation to ground heights.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4)For this section, a building surveyor that is a partnership inspects land personally if any partner inspects the land.

14DExemption assessment applications—contents of request for further information

(1)A request under section 14C must—

(a)state the period within which the further information asked for must be provided; and

(b)if the further information is not a document—state that the further information must be provided in writing; and

(c)state that the owner need not provide the further information, but if the owner fails to provide some or all of the information in accordance with the request, the building surveyor may refuse under section 14E to issue an exemption assessment B notice; and

(d)state that, despite the owner and building surveyor having previously not agreed that the building surveyor would obtain the further information, the owner and building surveyor may agree that the building surveyor will obtain the information.

(2)The request may require the owner to confirm all or part of any information provided by statutory declaration.

(3)The period stated under subsection (1) (a) must be at least 20 working days or, if a shorter period is prescribed by regulation, the shorter period.

(4)The building surveyor may, on application before the end of the period stated under subsection (1) (a), extend the period within which the further information must be provided once only, for a period not longer than 20 working days.

14EExemption assessment applications—effect of failure to provide further information

(1)This section applies if—

(a)a building surveyor has asked for further information under section 14C in relation to an exemption assessment application; and

(b)the owner has not provided some or all of the information by—

(i)the end of the period stated in the request; or

(ii)if the building surveyor has extended the period within which the further information must be provided—the end of that period; and

(c)the owner and the building surveyor have not agreed that the building surveyor will obtain the further information.

(2)The building surveyor may refuse to issue an exemption assessment B notice under section 14B.

  1. Application of pt 3 to building work
    Section 15, new note

    insert

    NoteThe owner of a parcel of land may apply to a building surveyor for an assessment about whether building work is exempt from all or part of the Act (see pt 2A).

  2. Building approval applications
    Section 26 (2), note

    substitute

    (e)if there is development approval for development to which the building work relates—be accompanied by a copy of the development approval, unless the applicant cannot obtain a copy of the approval after taking reasonable steps; and

    (f)if there is an exemption assessment D notice for development to which the building work relates—be accompanied by a copy of the exemption assessment D notice.

    Note 1Exemption assessment D notice—see the Planning and Development Act 2007, s 138D.

    Note 2If a form is approved under s 151 for this provision, the form must be used.

  3. Applications for building approval—certifier may require further information
    Section 26A (3) (b)

    substitute

    (b)photographs to be taken using equipment other than equipment of the applicant’s choice; or

  4. Contents of request for further information
    Section 26B (4), note

    omit

  5. New section 27A

    insert

27ANotice if building approval not issued

(1)This section applies if—

(a)an application for a building approval is made to the certifier under section 26; and

(b)the certifier does not issue the building approval for all or part of the building work that is the subject of the application because the certifier—

(i)refuses to issue the approval under section 26C; or

(ii)must not consider the application under section 27; or

(iii)must not issue the approval under section 30 or section 30A; or

(iv)decides that the approval is not required for all or part of the building work for which the application is made.

(2)The certifier must give the applicant written notice stating that building approval is not issued for the building work mentioned in subsection (1) (b) and the reason why the approval is not issued.

  1. Issue of building approvals
    Section 28 (2) (a), new note

    insert

    NoteThis may include deciding whether the building work requires development approval under the Planning and Development Act 2007 (see s 29 (1) (g)).

  2. Approval requirements
    New section 29 (1) (g) (ia)

    insert

    (ia)a copy of an exemption assessment D notice for the site work stating that the site work is an exempt development is attached; or

    Note 1If site work is an exempt development, it does not require development approval (see Planning and Development Act 2007, s 133).

    Note 2Applying for an exemption assessment is not a requirement of the development approval or building approval process. If a person believes that a development is an exempt development, the person need not apply for an exemption assessment from a works assessor or building surveyor (see Planning and Development Act 2007, div 7.3.1A).

  3. Section 29 (1) (g), new example and note

    before note 1, insert

    If an exemption assessment D notice for the proposed residence and garage indicates the residence and garage are exempt from requiring development approval, then the plans do not need to include any additional information to establish that the proposed residence and garage are an exempt development.

    Note 1AThis provision does not give a certifier power to require an applicant to provide either development approval, or an exemption assessment D notice, under the Planning and Development Act 2007.

  4. New section 29 (6A)

    insert

    (6A)For subsection (1) (g) (ia), the certifier must be satisfied that the exemption assessment D notice—

    (a)is for the site work to which the application relates; and

    (b)was issued by a works assessor or building surveyor not more than 3 months before the day the application for building approval was made.

    NoteThere is no obligation on the certifier to confirm the exemption assessment D notice in any other way, such as for accuracy or completeness.

  5. Contents of request for further information
    Section 32B (4), note

    omit

  6. Notification by certifier of possible noncompliant site work
    New section 50A (2A) and (2B)

    insert

    (2A)For subsection (1) (a) (ii), a certifier may rely on an exemption assessment D notice issued not more than 3 months earlier.

    NoteAn exemption assessment D notice states whether a development is exempt from requiring development approval (see Planning and Development Act 2007, s 138D).

    (2B)Subsection (2A) applies whether or not the exemption assessment D notice was incorrect if the certifier was not aware, and could not reasonably have been aware, that the notice was incorrect.

  7. Site work without adequate development approval—people
    New section 50B (3A) and (3B)

    insert

    (3A)For subsection (3) (b), a defendant is taken to be satisfied on reasonable grounds if the defendant proves that the defendant relied on an exemption assessment D notice, issued not more than 3 months before the day the application for building approval was made, stating that the development did not require development approval.

    (3B)Subsection (3A) applies whether or not the exemption assessment D notice was incorrect, unless the prosecution establishes that the defendant knew, or could reasonably be expected to have known, that the notice was incorrect.

  8. Site work without adequate development approval—partners
    Section 50C

    omit

    the partnership proves

    substitute

    a partner proves

  9. New section 50C (3A) and (3B)

    insert

    (3A)For subsection (3) (b), a partnership is taken to be satisfied on reasonable grounds if a partner proves that the partnership relied on an exemption assessment D notice, issued not more than 3 months before the day the application for building approval was made, stating that the development did not require development approval.

    (3B)Subsection (3A) applies whether or not the exemption assessment D notice was incorrect, unless the prosecution establishes that at least 1 of the partners knew, or could reasonably be expected to have known, that the notice was incorrect.

  1. Carrying out building work in contravention of s 42
    Section 51 (4)

    substitute

    (4)It is a defence to a prosecution against the owner of the parcel of land for an offence against subsection (2) if the owner satisfies the court—

    (a)that the owner—

    (i)believed on reasonable grounds that section 42 had been complied with; or

    (ii)was not aware, and could not reasonably have been aware, that the building work had begun or been carried out; or

    (b)that—

    (i)an exemption assessment B notice stating that the building work was exempt from all or part of this Act had been issued before, but not more than 3 months before, the day the building work began; and

    (ii)the owner was not aware, and could not reasonably have been aware, that the notice was incorrect; or

    (c)that—

    (i)a building approval, or approval of amended plans, for the building work had been issued; and

    (ii)the building work was carried out when the building approval, or approval of amended plans, was in force; and

    (iii)the owner was not aware, and could not reasonably have been aware, that the approval, or the approval of the amended plans, should not have been issued.

  2. Section 51 (5) (b)

    omit everything before subparagraph (i), substitute

    (b)the person believed on reasonable grounds that—

  3. New section 51 (6)

    insert

    (6)It is a defence to a prosecution against a person other than the owner of the parcel of land if the person satisfies the court—

    (a)that an exemption assessment B notice stating that the building work was exempt from requiring building approval had been issued not more than 3 months before the day the building work began, unless the prosecution establishes that the person knew, or could reasonably be expected to have known, that the notice was incorrect; or

    (b)that—

    (i)a building approval, or approval of amended plans, had been issued for the building work; and

    (ii)the person was not aware, and could not reasonably have been aware, that the approval, or the approval of the amended plans, should not have been issued.

  4. Regulation-making power
    Section 152 (6)

    substitute

    (6)The regulations may also prescribe offences for contraventions of the regulations and prescribe maximum penalties of not more than 60 penalty units for offences against the regulations.

  5. New part 15

    insert

Part 15Transitional—Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010

  1. Meaning of commencement day—pt 15

    In this part:

    commencement day means the day this part commences.

  2. Transitional regulations

    (1)A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010.

    (2)A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

    (3)A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

    (4)A regulation under subsection (2) expires 2 years after the day it commences.

  3. Expiry—pt 15

    This part expires 2 years after the commencement day.

  4. Dictionary, note 2

    insert

    ·     construction occupations registrar

  5. Dictionary, new definitions

    insert

    building surveyor—see the Constructions Occupations (Licensing) Act 2004, section 9.

    exemption assessment—see section 14.

    exemption assessment B notice—see section 14B.

    exemption assessment D notice—see the Planning and Development Act 2007, section 138D.

Part 3Construction Occupations (Licensing) Act 2004

  1. Legislation amended—pt 3

    This part amends the Construction Occupations (Licensing) Act 2004.

  2. What is a building surveyor?
    New section 9 (1) (aa)

    insert

    (aa)an exemption assessment service; or

  3. New section 9 (1A)

    insert

    (1A)An exemption assessment service is the doing of exemption assessment work.

  4. Section 9 (3), new definition of exemption assessment work

    after the note, insert

    exemption assessment work means undertaking an exemption assessment under the Building Act 2004.

  5. What is a works assessor?
    Section 14A (3), definition of works assessment work, except note

    substitute

    works assessment work means—

    (a)undertaking an exemption assessment under the Planning and Development Act 2007; or

    (b)providing, including doing anything incidental to providing, a unit title assessment report under the Unit Titles Act 2001.

  6. What is an operational Act?
    Section 16

    insert

    ·     Planning and Development Act 2007;

  7. Rectification orders—exercise of registrar’s powers
    Section 33A (b)

    omit

    this Act, an operational Act or the Planning and Development Act 2007

    substitute

    this Act or an operational Act

  8. Considerations for deciding under s 34 and s 35
    Section 36 (3) (b)

    omit

    this Act, an operational Act or the Planning and Development Act 2007

    substitute

    this Act or an operational Act

  9. Registrar’s functions
    New section 104 (3)

    insert

    (3)A code of practice is a notifiable instrument.

    NoteA notifiable instrument must be notified under the Legislation Act.

  10. New part 16

    insert

Part 16Transitional—Construction Occupations Legislation Amendment Act 2010 and Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010

  1. Meaning of commencement day—pt 16

    In this part:

    commencement day means the day this part commences.

  2. Transitional regulations

    (1)A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Construction Occupations Legislation Amendment Act 2010 and the Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010.

    (2)A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

    (3)A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

    (4)A regulation under subsection (2) expires 2 years after the day it commences.

  3. Expiry—pt 16

    This part expires 2 years after the commencement day.

Part 4Construction Occupations (Licensing) Regulation 2004

  1. Licence applications—Act, s 17 (3)
    Section 5 (h)

    substitute

    (h)if the application is for a licence as an asbestos assessor, building surveyor, plumbing plan certifier or works assessor—the name of the insurer who will provide the insurance mentioned in section 16A (Eligibility to be asbestos assessor), section 17 (Eligibility to be building surveyor), section 18 (Eligibility to be plumbing plan certifier) or section 18A (Eligibility to be works assessor);

  2. Section 8 heading

    substitute

  3. Term of licence for asbestos assessors, building surveyors, plumbing plan certifiers and works assessors—Act, s 24

  4. Section 8 (1)

    substitute

    (1)This section applies to a licence in the construction occupation of asbestos assessor, building surveyor, plumbing plan certifier or works assessor.

  5. Particulars in register
    Section 9 (1) (c)

    substitute

    (c)if the licensee is an asbestos assessor, building surveyor, plumbing plan certifier or works assessor—the name of the insurer who provides the insurance mentioned in section 16A (Eligibility to be asbestos assessor), section 17 (Eligibility to be building surveyor), section 18 (Eligibility to be plumbing plan certifier), section 18A (Eligibility to be works assessor) or the regulations;

  6. New section 18A

    in division 4.1, insert

18AEligibility to be works assessor

(1)An applicant for a licence to be a works assessor is eligible for the licence only if the applicant satisfies the registrar that the applicant is adequately insured.

(2)An applicant is adequately insured if the applicant has professional indemnity insurance that provides—

(a)indemnity against claims for breach of professional duty as a works assessor; and

(b)a minimum limit of indemnity of $1 000 000 for a single claim; and

(c)a minimum limit of indemnity of $1 000 000 for the total of all claims made against the applicant during the period of cover; and

(d)in addition to the indemnities mentioned in paragraphs (b) and (c), a minimum limit of indemnity for the costs and expenses of defending or settling a claim of 20% of the limit of indemnity for the claim.

(3)In subsection (2) (d):

costs and expenses means costs and expenses incurred with the insurer’s consent.

  1. Schedule 1, new part 1.9

    insert

Part 1.9Works assessors

column 1

item

column 2

construction occupation class

column 3

construction work
1 works assessor—unit titles works assessment work

  1. Schedule 1, new part 1.9

    substitute

Part 1.9Works assessors

column 1

item

column 2

construction occupation class

column 3

construction work
1 Class A works assessor—planning and development undertaking an exemption assessment under the Planning and Development Act 2007
2 Class B works assessor—planning and development

undertaking an exemption assessment under the Planning and Development Act 2007, in relation to the following:

(a)     site work under the Building Act 2004 for a class 1 building or class 10 building or structure;

(b)     development in relation to a class 1 building or class 10 building or structure, mentioned in the Planning and Development Regulation 2008, schedule 1, other than the following:

         (i)     division 1.3.6;

        (ii)     section 1.102 and section 1.103;

          (iii)     section 1.105 to section 1.112
3 works assessor—unit titles providing, including doing anything incidental to providing, a unit tiles assessment report under the Unit Titles Act 2001

Part 5Planning and Development Act 2007

  1. Legislation amended—pt 5

    This part amends the Planning and Development Act 2007.

  2. What is an exempt development?
    Section 133, notes

    substitute

    Note 1An approval may be given subject to conditions, see s 165.

    Note 2The planning and development authority must tell a proponent of a development proposal if the development is likely to be exempt (see s 138 (4) (a)).  A person may apply for an exemption assessment to work out whether a development is an exempt development (see s 138B).

    Note 3An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  3. Consideration of development proposals
    Section 138 (4) (a), new note

    insert

    NoteA person may apply for an exemption assessment to work out whether a development is an exempt development (see s 138B).

  4. New division 7.3.1A

    insert

Division 7.3.1A        Exemption assessments

138APurpose of exemption assessment D notices

(1)An exemption assessment may relate to development that is to be undertaken or has been undertaken.

(2)An exemption assessment D notice in relation to a development that is to be undertaken certifies that the development is, or is not, an exempt development.

(3)An exemption assessment D notice in relation to a development that has been undertaken certifies that the development is, or is not, exempt from requiring development approval based on whether the development was exempt from requiring development approval at the time it was done, or is currently exempt from requiring development approval.

138BExemption assessment applications

(1)A person may apply, in writing, to a works assessor or building surveyor for an assessment (an exemption assessment) of whether a development is an exempt development under section 133.

Note 1Building surveyor—see the Constructions Occupations (Licensing) Act 2004, s 9.  Works assessor—see the Constructions Occupations (Licensing) Act 2004, s 14A.

Note 2Applying for an exemption assessment is not a requirement of the development approval or building approval process (see s 138C and the Building Act 2004, s 14A). If a person believes that a development is an exempt development, the person need not apply for an exemption assessment from a works assessor or building surveyor.

(2)The application must—

(a)include—

(i)the plans relating to the development prescribed by regulation; and

(ii)any other details or material prescribed by regulation; and

(b)be in writing signed by the applicant; and

(c)if the applicant is someone other than the lessee of the land to which the application relates—also be signed by—

(i)if the land to which the application relates is subject to a lease—the lessee of the land; or

(ii)if the land to which the application relates is public land or unleased land—the custodian for the land; or

(iii)in any other case—the planning and land authority.

NoteIf a form is approved under s 425 for an application, the form must be used.

(3)A regulation may prescribe information required to be shown in plans under subsection (2) (a) (i).

138CExemption assessment not required for development approval

(1)An exemption assessment is not a requirement of the development approval process.

(2)A works assessor or building surveyor may issue an exemption assessment D notice to a person only if the person has applied to the works assessor or building surveyor for an exemption assessment.

138DExemption assessments and notices

(1)This section applies if a person applies to a works assessor or building surveyor for an exemption assessment under section 138B and the works assessor or building surveyor agrees to provide the exemption assessment.

(2)The works assessor or building surveyor must—

(a)prepare the exemption assessment; and

(b)issue a notice (an exemption assessment D notice) stating whether the development is an exempt development under section 133; and

(c)give the exemption assessment D notice to the applicant; and

(d)within 5 days after the day the works assessor or building surveyor issues the notice—give a copy of the notice to the planning and land authority.

Note 1The works assessor or building surveyor may refuse to issue a notice if the works assessor or building surveyor does not have enough information (see s 138G).

Note 2Other people may rely on an exemption assessment D notice, for example, a building surveyor when issuing a building approval under the Building Act 2004.

(3)If the development that is the subject of the application has been undertaken and the works assessor or building surveyor certifies that the development is exempt because the development was exempt when undertaken, the exemption assessment D notice must also include the dates on which the works assessor or building surveyor has based the assessment that the development was exempt.

(4)If, after taking reasonable steps, an applicant cannot find a works assessor or building surveyor who will agree to provide an exemption assessment, the applicant may apply to the construction occupations registrar to appoint a works assessor to prepare the exemption assessment and issue an exemption assessment D notice.

NoteIf the proponent of a development proposal lodges the proposal with the planning and development authority, the authority must tell the proponent if the development is likely to be exempt (see s 138 (4) (a)).

138EExemption assessment applications—request for further information

(1)This section applies if—

(a)a works assessor or building surveyor requires further information for an exemption assessment under section 138D; and

(b)the applicant and the works assessor or building surveyor have not agreed that the works assessor or building surveyor will obtain the further information; and

(c)the works assessor or building surveyor believes on reasonable grounds that the further information will help the works assessor or building surveyor to prepare the assessment.

(2)The works assessor or building surveyor may, by written notice, ask the applicant to give the works assessor or building surveyor stated further information in relation to the application.

(3)This section does not entitle a works assessor or building surveyor to require—

(a)photographs to be taken by someone other than the applicant; or

(b)photographs to be taken using equipment other than equipment of the applicant’s choice; or

(c)further information if—

(i)the works assessor or building surveyor has, or has reasonable access to, suitable information that allows the works assessor or building surveyor to decide the application without personally inspecting the land where the development is to be carried out; or

(ii)a territory law requires the works assessor or building surveyor to personally obtain or be given the information.

Examples—suitable information works assessor or building surveyor has or has reasonable access to

1     The website provides aerial photographs and topographical information including ground contours for some ACT areas.  If the land to which an application relates is covered by the website, the photographs and contours have sufficient information, and are accurate and recent enough, to decide the application in relation to tree and ground‑height related matters, the works assessor or building surveyor may not require further information or documents by way of photographs or topographical information in relation to trees and ground heights.

2     A works assessor or building surveyor may verify land tenure and permit and statutory approval matters by contacting the statutory custodians of the information to a sufficient degree to decide the application in relation to those matters.  The works assessor or building surveyor may not require further information in relation to those matters.

3     The land to which an application relates is covered by but, because the slope of the land to be built on is steeper than would be adequately shown on the website, the works assessor or building surveyor does not have suitable information to allow the works assessor or building surveyor to decide the application without personally inspecting the land.  Another website has some topographical information on the land, but it is not of sufficient resolution, or recent enough, to be relied on by the works assessor or building surveyor in relation to ground heights to decide the application.  The works assessor or building surveyor may require further information in relation to ground heights.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4)For this section, a works assessor or building surveyor that is a partnership inspects land personally if any partner inspects the land.

138FExemption assessment applications—contents of request for further information

(1)A request under section 138E must—

(a)state the period within which the further information asked for must be provided; and

(b)if the further information is not a document—state that the further information must be provided in writing; and

(c)state that the applicant need not provide the further information, but if the applicant fails to provide some or all of the information in accordance with the request, the works assessor or building surveyor may under section 138G refuse to issue an exemption assessment D notice; and

(d)state that, despite the applicant and works assessor or building surveyor having previously not agreed that the works assessor or building surveyor would obtain the further information, the applicant and works assessor or building surveyor may agree that the works assessor or building surveyor will obtain the information.

(2)The request may require the applicant to verify all or part of any information provided by statutory declaration.

(3)The period stated under subsection (1) (a) must be at least 20 working days or, if a shorter period is prescribed by regulation, the shorter period.

(4)The works assessor or building surveyor may, on application before the end of the period stated under subsection (1) (a), extend the period within which the further information must be provided once only, for a period not longer than 20 working days.

138GExemption assessment applications—effect of failure to provide further information

(1)This section applies if—

(a)a works assessor or building surveyor has asked for further information under section 138E in relation to an exemption assessment application; and

(b)the applicant has not provided some or all of the information by—

(i)the end of the period stated in the request; or

(ii)if the works assessor or building surveyor has extended the period within which the further information must be provided—the end of that period; and

(c)the applicant and the works assessor or building surveyor have not agreed that the works assessor or building surveyor will obtain the further information.

(2)The works assessor or building surveyor may refuse to issue an exemption assessment D notice under section 138D.

  1. Offence to develop without approval
    Section 199 (6)

    substitute

    (6)It is a defence to a prosecution for an offence against subsection (4) if the defendant proves—

    (a)that before undertaking the development the defendant took reasonable steps to find out whether the development required development approval; or

    (b)that—

    (i)an exemption assessment D notice was issued before, but not more than 3 months before, the day the defendant started to undertake the development, stating that the development was an exempt development under section 133; and

    (ii)the defendant was not aware, and could not reasonably have been aware, that the notice was incorrect; or

    (c)that—

    (i)before the day the defendant started to undertake the development, a building approval or approval of amended building work plans under the Building Act 2004 for which development approval was required was issued; and

    (ii)the building work was carried out when the building approval, or the approval for the amended plans, was in force; and

    (iii)the defendant was not aware, and could not reasonably have been aware, that the building approval, or the approval of the amended plans, should not have been issued without development approval.

    NoteSee the Building Act 2004, s 28 (for issue of building approvals) and s 32 (for amendment of approved plans).

  2. Regulation-making power
    Section 426 (5)

    substitute

    (5)A regulation may create offences and fix maximum penalties of not more than 60 penalty units for the offences.

  3. New chapter 16

    insert

Chapter 16Transitional—Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010

  1. Meaning of commencement day—ch 16

    In this part:

    commencement day means the day this part commences.

  2. Transitional regulations

    (1)A regulation may prescribe transitional matters necessary or convenient to be prescribed because of the enactment of the Construction Occupations Legislation (Exemption Assessment) Amendment Act 2010.

    (2)A regulation may modify this part (including in relation to another territory law) to make provision in relation to anything that, in the Executive’s opinion, is not, or is not adequately or appropriately, dealt with in this part.

    (3)A regulation under subsection (2) has effect despite anything elsewhere in this Act or another territory law.

    (4)A regulation under subsection (2) expires 2 years after the day it commences.

  3. Expiry—ch 16

    This part expires 2 years after the commencement day.

  4. Dictionary, new definitions

    insert

    building surveyor—see the Construction Occupations (Licensing) Act 2004, section 9.

    exemption assessment—see section 138B.

    exemption assessment D notice—see section 138D.

    works assessor—see the Constructions Occupations (Licensing) Act 2004, section 14A.

Part 6Unit Titles Act 2001

  1. Legislation amended—pt 6

    This part amends the Unit Titles Act 2001.

  2. Unit title applications—general requirements
    New section 17 (5) (c)

    before the note, insert

    (c)a plan prepared by a registered surveyor showing anything prescribed by regulation.

  3. Unit title assessment reports
    Section 22B (2), example

    substitute

    Examples

    1     proposed unit title plans

    2     information about a development approval

  4. Unit title assessment report applications—unit title assessor may require further information
    New section 22C (3) and (4)

    insert

    (3)This section does not entitle a unit title assessor to require—

    (a)photographs to be taken by someone other than the owner of the parcel of land; or

    (b)photographs to be taken using equipment other than equipment of the owner’s choice; or

    (c)further information if—

    (i)the unit title assessor has, or has reasonable access to, suitable information that allows the unit title assessor to decide the application without personally inspecting the land where the building work is to be carried out; or

    (ii)a territory law requires the unit title assessor to personally obtain or be given the information.

    Examples—suitable information unit title assessor has or has reasonable access to

    1     The website provides aerial photographs and topographical information including ground contours for some ACT areas.  If the land to which an application relates is covered by the website, the photographs and contours have sufficient information, and are accurate and recent enough, to decide the application in relation to tree and ground‑height related matters, the unit title assessor may not require further information or documents by way of photographs or topographical information in relation to trees and ground heights.

    2     A unit title assessor may verify land tenure and permit and statutory approval matters by contacting the statutory custodians of the information to a sufficient degree to decide the application in relation to those matters.  The unit title assessor may not require further information in relation to those matters.

    3     The land to which an application relates is covered by but, because the slope of the land to be built on is steeper than would be adequately shown on the website, the unit title assessor does not have suitable information to allow the unit title assessor to decide the application without personally inspecting the land.  Another website has some topographical information on the land, but it is not of sufficient resolution, or recent enough, to be relied on by the unit title assessor in relation to ground heights to decide the application.  The unit title assessor may require further information in relation to ground heights.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (4)For this section, a unit title assessor that is a partnership inspects land personally if any partner inspects the land.

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 6 May 2010.

  2. Notification

    Notified under the Legislation Act on 8 July 2010.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Construction Occupations Legislation (Exemption Assessment) Amendment Bill 2010, which was passed by the Legislative Assembly on 24 June 2010.

    Acting Clerk of the Legislative Assembly

    © Australian Capital Territory 2010

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