This guide sets out the main elements of the system for controlling development in South Australia. Because developments can affect neighbours and others, this guide also looks at the issue of public consultation and the right to object to developments.
Throughout this fact sheet, various legal terms are used. The “Act” means the Development Act 1993, and the “Regulations” means the Development Regulations 2008. Other terms are defined in general rather than strict legal language.
What is ‘Development’?
The legal definition of “Development” is contained in the Development Act and includes:
- the construction, demolition or removal of a building and related excavations and filling,
- a change in the use of land (eg from warehouse to factory);
- division of land (eg subdivision).
Special provisions apply in relation to registered State and local heritage places, mining, road building and other activities specifically listed in the Regulations.
Why does development need to be controlled?
The protection of the environment and the maintenance of individual and community rights are fundamental principles of our society. Controlling development by allowing, preventing or attaching conditions to the types of activities individuals wish to undertake is fundamental to maintaining order in our cities, towns and rural areas. Uncontrolled development would lead to chaos, pollution and a poorer quality of life for everyone.
The Development Act sets out the development control system for the whole of South Australia.
The basis of the system is that no development may be undertaken unless it is approved by the “relevant authority”.
Who is responsible for controlling development?
The relevant authority will usually be the local council in whose area the development is proposed to be carried out. In some cases, a special body called the Development Assessment Commission is responsible. These include cases where:
- it is the local council itself who is proposing to undertake the development (ie. Councils can’t be both developer and development controller);
- the proposed development is to be undertaken in a part of the State that is not with the area of a Council (eg off-shore areas, some country and outback areas);
- the proposed development involves division of land in certain areas; or
- the matter is specified by Regulation as being the responsibility of the Commission.
How does a person apply for permission to develop?
The application for development approval must be made on a standard development application form available from all Councils and the Development Assessment Commission.
There are a number of different “consents” which must be obtained before development “approval” will be given:
- “Development plan consent” must be obtained for all types of development (see below for details);
- “Building rules consent’” must be obtained if any building work is proposed (see below for details);
- a “land division certificate” issued by the Development Assessment Commission is needed for any proposed land subdivision.
A developer may apply for all of these consents “in one hit’ or in stages, depending on the nature of the development. The application form sets out how many copies are required what information must be included.
What factors are taken into account in assessing development applications?
An application for development will be assessed against the Development Plan relating to the council area within which the development is proposed to be carried out. The Development Plan is a legal document which outlines the objectives and principles of development control in each council area.
Development Plans include details of zoning for different land uses such as housing or industry. Usually, the zoning will set out what activities are desirable in each area and which ones are undesirable.
If the proposed development is described by the Regulations or the Development Plan as a “complying development”, it must be granted a “provisional development plan consent’. A typical example is the building of houses in areas zoned “residential” or factories in areas zoned “industrial”.
Where the development is described as “non-complying” the relevant authority may refuse application without even assessing its merits. For example an application to build a factory in a residential area may be refused without any detailed examination of the proposal. In these cases, there is no right of appeal if the developer is unhappy with the decision.
In some instances, “non-complying developments” may be considered for approval. The Act and Regulations set out a procedure for dealing with these cases.
“Building rules consent”
As well as ensuring that the proposed development is of a type desirable for a certain area, the responsible authority needs to ensure that a proposed building complies with the “Building Rules”. These rules deal with matters such as structural safety of buildings. In some cases a body called the Building Rules Assessment Commission must also agree.
What rights do the public have?
The Act provides for public notice and consultation depending on the nature of the proposed development. Generally speaking, the bigger or more important the development, the more scope for public involvement.
There are four categories of development for the purposes of public notice and consultation. The types of development in each category are set out in the Regulations.
- Category 1: No public notice is given, no public consultation occurs and there is no right of appeal by “third parties” against the decision.
- Category 2: A notice, describing the development, identifying the land and stating such things as whether it is complying or non-complying development must be given; the relevant authority to the owner and occupiers of adjacent land. (i.e. the neighbours)
- Category 2A: Notice is given to owners/occupiers of residential homes along a boundary where the development is complying but involves building work.
- Category 3: The same notice must be given to adjacent owners and occupiers. In addition, notice must be given to those considered by the relevant authority to be “significantly affected” by the development. Finally, the general public must be notified by publication of a notice in a newspaper.
Where notice has been given, a representation or submission (for or against the proposal) may be lodged with the relevant authority. This representation must be made within ten days and contain certain information. The applicant (the developer) then has another ten days within which to respond, after which the relevant authority will proceed to make its decision.
In the case of Category 2 and 2A developments, the relevant authority may allow both the applicant and representor to appear and argue their case before it. In the case of Category 3 developments, the relevant authority must allow the representor to appear if they reguest to do so
Some special cases
Where the Minister responsible for the Development Act considers a proposed development to be of major social, economic or environmental importance they may require the preparation of an environmental impact statement, Public Environment Report or Development Report. If this is required, the procedure for approval is different to that outlined above.
It should be noted that where a State agency proposes to undertake development, the procedure for approval is different to that outlined above.
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More information on development control (either generally or in specific cases) may be obtained from your local Council, or from the Development Assessment Commission, 136 North Tce Adelaide. Ph: (08) 8303 0771.
Planning SA produces a useful booklet entitled “Guide to Development Assessment: An Integrated Planning and Development Assessment System”. Planning SA are located at 136 North Tce Adelaide. Ph: ( 08 ) 8303 0600 or go to www.planning.sa.gov.au.
The Development Act 1993 and Development Regulations which are the primary sources of law in this area can be purchased from Service SA ,108 North Tce Adelaide phone: 13 2324 or go to www.shop.service.sa.gov.au.
The Environmental Defenders Office (SA) inc, (EDO) is a non-profit community legal centre offering free advice to individuals and groups on all matters of environmental law. The EDO operates an advisory on Thursday evenings between 6-8PM at: 408 King William St Adelaide SA 5000 Fax +61 (08) 8410 3855. Appointments are necessary and must be made by ringing 8410 3833 or freecall 1800 337 566. It is not a substitute for proper legal advice. Important legal details have been omitted to provide a brief overview of this law. Contact the EDO or your solicitor for more detailed legal advice about your specific problem. This guide was funded by a grant from the Law Foundation of South Australia.