Development Assessment Process in SA

Overview of the SA Planning System

The Development Act, 1993 establishes the strategic and statutory framework that defines and guides “development” throughout South Australia.  The key components associated with strategic planning include the Planning Strategy and the Development Plan (one for each Council area).  These documents guide the overarching vision for the State and the assessment criteria to be applied to development.

The Development Plan is required to be amended to reflect updated local or State Government policy directions, to introduce changes to zoning or to implement a new vision for future development.  The review of the Development Plan is also required to have regard to infrastructure planning undertaken by Council as part of the Strategic Management Plan process prescribed by way of the Local Government Act, 1999.

The statutory framework is more specifically framed by the Development Regulations, 2008 which prescribe the method of defining, categorising and assessing development.  This includes specific referrals to other agencies so as to provide a “one-stop-shop” for the assessment of development.

The statutory framework also prescribes complying development that is guaranteed Development Plan consent (subject to compliance with design standards), while a subset of complying development also exists in the form of Residential Code complyng development. 

Residential Code complying development is contained within Schedule 4 and Schedule 4, Clause 2A and 2B of the Development Regulations, 2008 and includes potentially detached and semi-detached dwellings, single storey dwelling additions, sheds, garages and carports (this is not an exhaustive list building work referred to therein).

Residential Code complying development requires compliance with design standards set out in the Development Regulations, 2008, rather than the Development Plan.

The 30 Year Plan for Greater Adelaide can be found at the following link:

http://www.dplg.sa.gov.au/plan4adelaide/html/plan.cfm

A description of the Development Plan and the process of amending a Development Plan (i.e. Statement of Intent, Development Plan Amendment, interim operation, consultation phase and Ministerial consideration) are outlined on the DPTI website.

The various components of the development assessment process are outlined at the following.

The Residential Code and its role relating to complying development assessment is outlined in the following State Government website

 Development Approval

All development, as defined by the Act and Regulations (See Section 4 of the Development Act 1993 and Schedule 2 of the Development Regulations 2008), requires the lodgement of a development application to seek Development Approval from the relevant authority.

Generally, a development must receive planning and building consent before obtaining Development Approval. Applications for planning and building consent can be lodged concurrently or separately, but applications for building consent must be consistent with the planning consent. Building consent can be obtained from the Council or by a private certifier, whereas planning consent can only be obtained from the Council.

An application for Development Approval must be lodged on a standard form with the relevant authority (for information on the relevant authority, see ‘Decisions by the Development assessment Commission (DAC)’ in the Local Government Planner’s Kit.

Source: ‘Better Planning, Better Future’, Department of Planning and Local Government

Development That Does not Require Planning Consent

Some kinds of development do not require planning consent. Specifically:

  • ‘Exempt’ development does not require planning or building consent. ‘Exempt’ development is listed in Schedule 3 of the Development Regulations 2008.
  • Some residential development matters do not require planning consent but do require building consent. These are listed in Schedule 1A of the Development Regulations 2008.

Types of Development

When a relevant authority is assessing a development proposal, it will either be labelled complying, non–complying or consent on merit.

Complying Development

If a proposed development is considered ‘Complying Development’, planning consent must be issued within 10 working days of the application lodgment.
For a proposed development to be considered ‘complying’, it must be located in a zone where complying development applies, be listed as ‘complying’ in either the Development Plan or Schedule 4 of the Development Regulations 2008 and meet all of the required performance controls in the Development Regulations or Development Plan.

A relevant authority is able to use discretion under the Development Act to accept any minor variations from the performance controls.

If an application fails to meet only one performance control and the relevant authority considers the departure to be minor, the application will default to merit assessment but the assessment will only be on the non-complying part.

Building consent is still required for complying development applications.

Source: Guide: complying development, exempt development and development requiring building consent only.

Non-Complying Development

Non-complying applications for Development Plan consent are assessed against the zoning, policies and controls in the relevant Development Plan, and must not be 'seriously at variance' with the provisions of that Development Plan.
Where a land use or activity is defined as non-complying, it will generally not be granted consent. This is because it is a kind of development that is not considered to be appropriate in that zone.

However, non-complying land uses can be approved if they meet the policies in the Development Plan read as a whole. A Statement of Effect must be submitted with a Development Application for a non-complying development and concurrence must be achieved between both the Development Assessment Commission and Council for the development to be approved.

Source: Department of Planning and Local Government

Merit Development

Development of a kind not listed as either complying or non-complying in the Development Plan and Development Regulations is subject to a 'merit' assessment.

Merit applications for Development Plan consent are assessed against the zoning, policies and controls in the relevant Development Plan, and must not be 'seriously at variance' with the provisions of that Development Plan.

Residential Development Code

In 2009, the State Government amended the Development Act 1993 and Development Regulations 2008 to include the new Residential Development Code. The changes included expanding the number of exempt developments in Schedule 3 of the Development Regulations 2008 and creating a new category of ‘development requiring building consent only’ (Schedule 1A of the Development Regulations 2008).

Changes have also been introduced to increase the number of complying developments (Schedule 4 of the Development Regulations 2008 ).
See the Planner’s Toolbox Page for more information on navigating the Residential Development Code.
Click here to see a map of the full code areas covering the metropolitan area.

For further information on the Residential Code, the DPTI have produced an information guide and a ‘Frequently Asked Questions’ document regarding the new Residential Development Code.  An Advisory Notice has also been published in relation to the Residential Development Code.

Residential Code Specific Terms

In addition to the information provided in the Overview of the SA Planning System the Residential Code has elements that are unique to the assessment process for these types of applications.

“Design standards” are specified by the Development Regulations, 2008 that are different from those that are found within the Development Plan.  Subject to compliance with all relevant design standards (and sufficient information to confirm compliance), the Development Plan provisions will not apply.  A summary of the topics addressed by the complying design standards is contained on the following link:

http://www.dplg.sa.gov.au/html/files/ADVNOT_final.pdf

“Determined Area” pertains to new dwelling Residential Code applications and specifies the geographic areas within which the design standards may apply, subject to various exclusions prescribed within Schedule 4 of the Development Regulations, 2008.

“Limited Assessment” is the common term that applies when a Residential Code assessment reveals that a development satisfies “all but one” relevant design standard (Section 35(1c) of the Development Act, 1993).  When this occurs, this section of the Act states:

“(1c) If a proposed development meets all but 1 criteria necessary for the development to be complying development, the aspect or aspects of the development that are consistent with the development being complying development must be regarded accordingly and the balance of the development will be assessed as merit development.”

“Minor Variation” is a concept associated with Section 35(1b) of the Development Act, 1993 which states that a “development that is assessed by a relevant authority as being a minor variation from complying development may be determined by the relevant authority to be complying development…”  That is, the Council has the discretion to deem a departure from a design standard or more than one standard as “minor” and continue to treat an application as complying.  Further detail is provided on the link below:

http://www.dplg.sa.gov.au/html/files/ADVNOT_final.pdf

Major Developments

If the Minister for Urban Development and Planning considers a proposed development to be of major economic, social or environmental importance, he or she can declare a proposed development a 'Major Development' (See Section 46 of the Development Act 1993).
This triggers a state-run assessment process where the Minister (assisted by the Department of Planning and Local Government) will comprehensively assess the proposal and its impact using the Major Development Assessment process (see below).

Stage 1 - Referral to the Development Assessment Commission (DAC) for setting of assessment level and guidelines.

DAC will consider the application and identify the key social, environmental and economic issues that need to be assessed. The DAC may consult with relevant State agencies as part of this process. It will then determine which level of further detailed assessment is required and issue formal assessment Guidelines.

The three possible levels of detailed assessment which can be required by the DAC are:

  • Environmental Impact Statement (EIS) - for most complex developments
  • Public Environmental Report (PER) - for more targeted assessment
  •  Development Report (DR) - for the least complex developments

Stage 2 - Proponent prepares and releases an Assessment document
The proponent will prepare an EIS, a PER or a DR, as directed by the Development Assessment Commission.

Stage 3 - Responding to public comment on an EIS, PER or DR
After the appropriate public comment period on an EIS or PER, the proponent will then be required to respond to any public or agency comments (this is optional for a DR).

Stage 4 - Assessing the proposal
The Minister (with the assistance of the Department of Planning and Local Government) will then assess the whole proposal, and detail that assessment in an Assessment Report.

Stage 5 – Decision
The Governor will make a decision on the final proposal (on the advice of the Minister and Cabinet) having regard to the Assessment Report and other documentation.

When deciding whether a development or project should be ‘declared’, the Minister applies two ‘tests’ outlined in Section 46(1) of the Development Act 1993. The Minister must be of the opinion that the development or project is of ‘major environmental, social or economic importance’ and the Minister must also form the view that such a declaration is ‘appropriate’ or ‘necessary’ for the ‘proper’ assessment of the proposal.

In most instances, the proponent of a proposal writes to the Minister to request a proposal be assessed using the Major Development provisions. However, the Minister may also be asked by members of the community to consider making a declaration, or simply become aware of a proposed development or project. The Minister would then seek further details from the development/project proponent. The Minister can also ‘declare’ an (already) approved development proposal, provided substantial work on the site has not commenced.

Source: Department of Planning and Local Government

For more information on the Major Development Process, see the Community Information Sheet .

Referrals

Some developments are in locations or involve activities that require the application to be referred to Government agencies or other bodies for their assessment and advice back to the relevant authority. This response may take the form of advice (ie the relevant authority only has regard to that advice) or direction (in which case, the relevant authority must comply with any direction given by the referral agency).

This referral process avoids the need for an applicant to obtain separate planning decisions from different bodies under different Acts.
Section 37 of the Development Act 1993 and Regulation 24 of the Development Regulations 2008 outlines the requirements for referrals.

Schedule 8 of the Development Regulations 2008 lists the kinds of applications that must be forwarded to particular referral bodies for comment before a planning consent decision is made.

Note that Schedule 8 does not apply to any development that has been approved by the State Coordinator-General for the purposes of the Commonwealth Nation Building Program or the Local Government Infrastructure Program.

In November 2007, Section 37AA of the Development Act was introduced to enable applicants to enter into formal discussions with one or more referral bodies prior to lodging an application.

Conditions

Development Plan consents granted under the Development Act may be subject to such conditions as the relevant authority thinks fit, and are binding on subsequent persons or companies having the benefit of the consent (see Section 42 of the Act that deals with conditions).

There are a number of principles governing the validity of conditions that are placed on a consent. These principles have evolved through court judgments.

Conditions:

  • must have finality
  • cannot be used to alter the fundamental nature of an application
  • must relate to that development
  • cannot bind or fetter the discretion of authorities under other legislation
  • must have a planning purpose
  • must be fair and reasonable
  • must be clear and definite

In addition:

  • be wary of placing time limits on a development or to limit to temporary operation only.
  • only in rare circumstances would cash contributions be valid
  • the need to seek approval under other Acts can be given only as advice or notes set out on the decision notification form and not as a condition


When the Environment, Resources and Development Court finds a condition of the relevant authority to be invalid, it must then make a decision as to whether the condition can be deleted or whether it is of a fundamental nature and would substantially alter the nature of a consent if deleted. In the latter circumstances, the consent itself is likely to be held invalid.

Appeal Processes

A right of appeal to the Environment, Resources and Development (ERD) Court is available under the Development Act to an applicant against a refusal to grant a consent or approval or to the conditions attached to the consent or approval. Note that no appeal is possible against a decision not to grant approval in relation to a non–complying development.

An appeal is also possible by a third party who was entitled to Category 3 public notification, and who has been given notice of the decision, and is aggrieved by that decision of the relevant authority.

These are the most common forms of appeal but other rights of appeal exist under Section 86 of the Development Act.

Section 86(f) gives an opportunity for a person to challenge the categorisation of a development (see ‘Which Category?’ in the Planners Toolbox Page).

The ERD Court is a specialist court set up to deal with disputes, and the enforcement of the laws that relate to the development and management of land, the natural and built environment and natural resources. The Court has a step-by-step guide for running an appeal.

Enforcement Proceedings

The Development Act provides that development must not be undertaken without the relevant development approval. Moreover, a person or body must comply with any condition attached to a development approval or a Land Management Agreement. The Act provides powers for enforcement proceedings against any person or body for a contravention of the Act.

Accordingly, where a person:

  • undertakes work on a development in breach of a condition or conditions of the development approval
  • undertakes work on a development in breach of the approved plans and specifications
  • undertakes development without approval

the relevant authority may, by notice under Section 84 of the Development Act , require the person to take any action necessary to correct the breach. A person who receives such a notice may lodge an appeal with the ERD Court within 14 days from the day on which the relevant authority issued the notice. The Court may allow additional time for the lodgment of appeals.

A person or body who wishes to remedy or restrain a breach of the Development Act can also apply to the Court for an order under Section 85 of the Act. The order, which is a direction of the Court, may, among other things, require the respondent to refrain, either temporarily or permanently, from continuing the breach or to make good the breach within a specific period or cancel or vary any development approval.

Land Division Process

Development Approval must be gained before land can be divided into separate allotments. This includes boundary changes, the creation of one or more allotments, or a large scale development of numerous allotments. An application for land division must be lodged with the Development Assessment Commission (DAC) and must be in the form prescribed by the

Development Regulations comprising the following:

  • completed Application Form
  • plan of Land Division (plus 9 copies)
  • application fees
  • two copies of the Certificate(s) of Title, and
  • supporting documentation (where applicable).

Once an application is lodged with the DAC, it is receipted, given a development number and forwarded to the local council and to any government agencies which may need to be consulted (eg SA Water Corporation, Commissioner of Highways etc).

The local council is the relevant decision-maker for the majority of applications. 

EDALA (Electronic Development Application Lodgement and Assessment)

The lodgement of land division applications occurs by way of a central electronic lodgement portal managed and maintained by the State Government.  The Electronic Development Application Lodgement and Assessment System (EDALA) provides on-line access to surveying agents, Councils and State agencies.

EDALA has replaced the paper based land division process with a secure internet based system which enables the electronic:

  • Lodgement (24 x 7) and payment of fees by surveying agents
  • Referral to and reporting by State Government agencies
  • Council and Development Assessment Commission (DAC) decisions
  • Lodgement of final plans
  • Final DAC certificates of approval, and Lands Titles Office verification
  • Application monitoring and progress reporting for the industry.

All land division applications are assigned a unique ID number and are forwarded to relevant State Government agencies for comment as required under Schedule 8 of the Development Regulations, 2008. The applications are then forwarded to Councils electronically via EDALA.

Each Council has its own ID, login and password to access EDALA.

Specific help and EDALA instructions for activities such as uploading decision notification forms, the acknowledgement of withdrawn applications, and the acceptance of amendments to determined applications can be gained by contacting the State Government Planning Services Branch on 8303 0601.