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 "stratum leases".

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 developers.

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 the encroachment.

Unit Title Applications Under The Amended Act



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 application.

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 practice.

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.