After much lobbying of the ACT government, we are pleased to
announce that amendments to the Unit Titles Act 2001 were
passed on 8 April allowing the registration of new units plans
involving minor encroachments over adjoining roads or public
places. The effect of the amendments (which commenced on 18
April) will be that new unit plans for existing unit
developments can now be approved without the need for
For a number of years, the ACT Planning and Land Authority
("ACTPLA") has adopted a practice of rejecting
applications for a new units plan unless all encroachments were
physically removed or a stratum lease was granted over the
encroached area. This posed significant costs and delays for
Approvals Under The Amended Act
Under the amended Act, ACTPLA may now approve unit title
applications showing eaves, gutter, downpipes or awnings that
encroach on a public place.
If an encroachment already exists at the time of
application, it must be an "authorised existing
attachment" to be approved. Authorised existing
attachments are either encroachments that are shown on
a previous units plan registered before 1 January 2002 that is
being cancelled by the application or encroachments
that are lawful at the time of construction.
In all other cases, encroachments can be approved where they
would not endanger public safety or unreasonably interfere with
the amenity of the neighbourhood and it is not in the
public interest to refuse to approve the application because of
Unit Title Applications Under The Amended
The amended Act contains additional requirements for unit
title applications showing an existing or proposed
encroachment. Each application must now include a plan prepared
by a registered surveyor that shows the nature and extent of
the encroachment, whether the encroachment is for use with a
unit or the common property and if the encroachment is for use
with a unit, the unit to which the encroachment relates.
Effect On New Unit Developments
The amendments do not affect the development application
process under the Planning and Development Act 2007. For any
new unit development (as with any other new development),
ACTPLA will still require the grant of a licence over the
encroached public space before approving the development
If a subsequent unit title application is made over the new
development and the encroaching attachment has already
been constructed in accordance with development
approval and is otherwise lawful, it is an authorised existing
attachment and may be approved under the amended Act.
If a subsequent unit title application is made and the
encroaching attachment is not yet constructed
(ie. part of a "staged development"), then:
the existing provisions regarding the approval of staged
developments apply (in particular, ACTPLA must be satisfied
that the development has approval under the Planning and
Development Act); and
ACTPLA must be satisfied that the encroachment does not
endanger public safety or unreasonably interfere with the
amenity of the neighbourhood and it is not
in the public interest to refuse to approve the application
because of the encroachment.
Overall, although there will be additional requirements for
unit title applications that show minor encroachments, it is
expected that the amendments will save developers time and
money, particularly in replanning existing unit developments.
The amendments will also bring the ACT in line with NSW
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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