This section deals with land-use planning and the assessment of development proposals. Most of the law in this area is contained in the Development Act 1993 (SA) and all references are to the Development Act unless otherwise stated.
The new Planning, Development and Infrastructure Act 2016 (SA) was assented to on 17 April 2017, but will be implemented across 5 years. More information about the progress of implementation can be found on the SA Planning Portal. The current planning system under the Development Act 1993 (SA) will be progressively replaced by the new system.
The Development Act 1993 (SA) requires the State Government to maintain a Planning Strategy for South Australia. This document is a statement of government policy on desired future directions on a range of economic, social and environmental issues. The Planning Strategy is usually published in two volumes covering Metropolitan Adelaide and the remainder of the State. The concept of an overall strategy is supposed to provide guidance to government agencies and local government in carrying out its various planning functions. Development Plans (usually based on local government boundaries) are required to be consistent with the Planning Strategy.
Because the Planning Strategy is basically an expression of government policy (formed after consultation with Government agencies and the community), it has little practical day to day application and does not affect legal rights or liabilities whether of a substantive, procedural or other nature. Thus, whilst it receives statutory recognition in the Act, it is essentially a non-statutory document and, apart from decisions on major projects (see environmental impact assessment), is not to be taken into account for the purposes of any particular development decision making.
The Development Act 1993 (SA) expressly precludes any legal action being brought on the basis that a Development Plan (or an amendment to one) is inconsistent with the Planning Strategy or that an assessment or decision on an individual development application is inconsistent with the Planning Strategy.
The most important documents in the day-to-day assessment of development applications are Development Plans. These documents include 'objectives' and 'principles of development control' against which proposed developments can be assessed. The zoning of areas into residential, commercial, industrial, rural and other zones is also achieved through Development Plans.
A Development Plan may relate to any geographical part of the State and in the majority of cases will relate to council areas. Development Plans are prepared or amended by councils for their own areas, although the Development Act 1993 (SA) contains provisions to enable the Minister to prepare a Development Plan in some circumstances.
Development Plans are available for inspection or purchase from Council Offices or at http://www.planning.sa.gov.au. It should be noted that due to council amalgamations and restructuring, many Development Plans now relate to areas that no longer cover the whole of a local council. This means that if your council has recently amalgamated, you may have to look under the previous council name to find a Development Plan.
The Development Act 1993 (SA) contains procedures for amendments to Development Plans. This procedure involves public input through the opportunity to make representations and also a role for the Environment Resources and Development Committee of the Parliament for parliamentary scrutiny. The Act also requires councils to carry out periodic reviews of any Development Plan that applies within its area. The processes for ad hoc amendment and for periodic review of Development Plans are similar.
Formal public participation in Development Plan amendment or review consists of a right to make a written submission and to attend a public hearing called by the local council or the Minister to discuss the proposed changes. The period for submissions and the date of the public hearing must be advertised in a newspaper. Any submissions made become public documents and can be inspected at council offices, so it is important to avoid saying anything in the submission which could be interpreted as defamatory.
It is quite common for members of the community to take very little notice of Development Plan amendments, but to become quite vocal in their opposition to specific developments. In many cases, this situation could be avoided if community members participated in earlier decisions about zoning or objectives in the Development plan, rather than trying to argue against a specific development once it has been announced. For example, if there is concern amongst neighbours about a proposal to rezone certain land from 'light' to 'general' industry, then these concerns are better addressed during the Development Plan amendment process, rather than trying to challenge individual factories which seek to set up in the new zone. Once a rezoning has gone through, it will usually be too late to argue that the zoning is inappropriate or that it adversely affects local amenity.
The Development Act 1993 (SA) provides that 'no development may be undertaken unless the development is an approved development' [s 32]. However, not all acts or activities in relation to land are regarded as 'development', and not all development requires a formal approval. Accordingly, it is important to understand the legal meaning of the word 'development'.
Development is defined in the Act [s 4] in very wide terms and it includes building work, a change in the use of land, cutting, damaging or felling of significant trees and land division. Building work includes construction as well as the demolition or removal of a building. The Act now catches all those highly publicised disputes involving developers who sought to knock down existing buildings or structures before seeking planning permission. A change in the use of land constitutes development, even if no building work is undertaken. For example changing the use of a house from a residence to a restaurant or doctor's surgery would constitute development.
The definition of 'land' under the Act includes land covered with water. As a consequence things like permanently moored houseboats and pontoons fall within the definition of 'development'.
It also includes acts or activities which are declared by the Regulations to constitute development. This means that to ascertain one's rights and obligations it is necessary to refer to the Development Regulations 2008 (SA) as well as to the Act. If in doubt, it is usually safest to talk to your local council about your plans to ascertain whether formal development approval is necessary.
The relevant authority for making development decisions will be either the local council in whose area the development is proposed to be carried out or the Development Assessment Commission (DAC). The DAC is a special statutory body responsible for certain types of development or development in certain areas. The DAC is also the relevant authority if a local council is itself the developer or has a conflict of interest over the development. In the vast majority of cases the relevant authority will be the local council. The Development Act 1993 (SA) and Development Regulations 2008 (SA) set out the different circumstances in which the DAC or local council is responsible for a particular development, (see Regulations – Schedule 10). Examples of situations where the DAC would be the relevant authority are:
- most developments undertaken by the Housing Trust and the Urban Land Trust
- some land division applications
- marine aquaculture
- construction of buildings (other than dwellings) in much of the Hills Face Zone
- new shopping developments where the gross leasable area of the shop will exceed 2000 sq.m
Where the DAC is the relevant authority and the proposal involves building work the DAC can refer the building aspects of the assessment to the council or a private certifier [Development Act 1993 (SA) ss 34(2)(c) or (d)].
Having determined to which body the application should go, it is then necessary to choose the appropriate type of application. An applicant for a development approval may seek all required consents 'in one hit' but there is no obligation to do this [Development Act 1993 (SA) s 33(2)]. An applicant may, for example, only seek to have the relevant authority assess her or his development against the Development Plan, in which case only a 'provisional Development Plan consent' will be granted. This process assesses the compatibility of the development with the chosen site. It does not look at the detailed building plans. At the same time (or later) the applicant might seek 'provisional building rules consent'. This involves a detailed examination of the building plans against the 'Building Rules', which primarily consists of the Building Code of Australia, with certain local modifications.
An application for development approval must be accompanied by three copies of the plans, drawings and other documents required to assess the proposal. For land division applications, nine copies are required [see Development Regulations 2008 (SA) r 15]. Most councils have a pro forma accompanied by the appropriate fee which consists of a lodgment fee and a 'Development Plan assessment fee' which is calculated on the basis of the monetary value of the development. Other fees are payable for subdivisions and building approvals, [see schedule 6 Development Regulations 2008 (SA)].
Where a proposed development is assessed against a Development Plan different rules will apply depending upon whether the development is of a kind described as 'complying development', 'non-complying development' or 'merit development'.
Complying development essentially provides for a tick-box assessment of a proposal against a set of criteria. Development plan consent will be granted if the proposal is listed as complying in either the Development Plan or Schedule 4 of the Development Regulations 2008 [Development Act 1993 (SA) s 35(1) and Schedule 4 Development Regulations 2008 (SA)] and is in a zone where complying development applies and meets all the required standards ( performance controls ) for that sort of complying development.
Examples of complying development are:
- certain carports, garages, outbuildings and single story dwellings, additions and alterations
- work within a building which does not increase the total internal floor area
- demolition and removal of a building and replacing it within three years with a building substantially in the same place and having substantially the same layout and external appearance, (provided it is not located in the City of Adelaide, heritage places or conservation zones.)
- certain new detached and semi-detached homes (does not apply to battleaxe allotments)
It is important to appreciate that under the Development Act 1993 (SA), even if the development is a complying development, the developer is still required to lodge a formal application for development approval. These matters should be approved no more than 35 working days from application lodgment if all conditions are met. Usually complying developing assessment will take 10 working days.
Where development is described in a Development Plan or the Development Regulations 2008 (SA) as 'non-complying' the relevant authority may:
- refuse an application without proceeding to assess it, in which case there is no right of appeal by the applicant [Development Act 1993 (SA) s 39(4)(d)]
- determine to proceed to assess it, in which case as part of its assessment the relevant authority will require from the applicant a Statement of Effect.
This Statement of Effect must include:
- a description of the proposal, the relevant provisions of the Development Plan and the extent to which the proposal complies with the Development Plan, and
- an assessment of the expected social economic and environmental effects of the development on its locality [Development Act 1993 (SA) s 35, Development Regulations 2008 (SA) r 17].
Because non-complying developments can be controversial or have potentially adverse impacts on the local environment, a non-complying development must not be granted a consent unless both the local council and the DAC agree. In addition, where the DAC is the relevant authority, the Minister for Planning must also agree [Development Act 1993 (SA) s 35(3)].
Often, a Development Plan does not list a particular form of development as either complying or non complying. In these cases, the relevant authority must consider each development on its merits, having regard to the objectives and principles of development control set out in the Development Plan.
In 2009 a new Residential Development Code came into force. The Code covers exempt development, creates a new category of development requiring building consent only and expands the types of development categorized as complying development
An exempt development does not require development assessment or approval. It includes minor residential developments which homeowners commonly undertake to improve their properties. Examples include sheds up to 15 square metres in area (with some conditions), pergolas (with some conditions, including not having a hard roof, decks no more than 50cm above the ground (with some conditions), shade sails to 20 square metres and not higher than 3 metres (with some conditions), water tanks to 10 square metres (with some conditions), roller doors (with some conditions) and fences to 2.1 metres in height (with some conditions).
Exempt development applies in most areas of South Australia except for Flood zones, the Hills Face Zone and heritage areas.
Development requiring building consent only
For safety reasons some development requires building consent only. They include carports to 40 square metres (with some conditions), sheds 15-40 square metres (with some conditions), verandahs (with some conditions),swimming pools and spas (with some conditions), shade sails 20-40 square metres and no higher than 3 metres (with some conditions) and solar panels (with some conditions).
Again this applies in most areas of South Australia with exceptions including Flood Zones, the Hills Face Zone and heritage areas.
There is a maximum 25 working day approval time for these developments.
Often a local council or the DAC must seek the views of agencies such as the Environment Protection Authority (EPA), Commissioner of Highways or Coast Protection Board before making its decision [Development Act 1993 (SA) s 37(1)(b) and Schedule 8, Development Regulations 2008 (SA)]. A referral agency can ask the applicant for more documents or information before considering the application.
In some cases, these referral bodies have an effective right of veto over the development by being able to direct a refusal of the application or by insisting on strict conditions. In others cases, the referral body can only suggest the appropriate decision or conditions to which the relevant authority must 'have regard'.
The directions given to relevant authorities by referral bodies can be the subject of an appeal, however appeals are not allowed over directions given by the Commissioner of Highways (effectively Transport SA) in relation to developments on or near main roads [Development Act 1993 (SA) s 37(5)(b), r 31 and Schedule 8 Development Regulations 2008 (SA)].
The Development Act 1993 (SA) sets out three categories of development for the purposes of consultation and public notice [s 38(1)]. These categories are important because they determine whether and how information about a proposed development is made available to neighbours and other potentially interested persons. The categorisation of development also determines whether or not 'third party' (eg. neighbour) appeals are possible. The Development Plan or the Development Regulations 2008 (SA) can assign a form of development to Category l, Category 2 or Category 2A. Anything not assigned to Categories 1, 2 or 2A is regarded as Category 3 [Development Act 1993 s 38(2)( a ) & (b)]. Lists of Category 1 and 2 developments are contained in Schedule 9 Development Regulations 2008.
Category 1 developments might be:
- any development listed as a complying development in the Development Plan
Because Category 1 developments are usually the least controversial, no public notice of the development applications is required to be given and no formal consultation with neighbours or other interested parties is undertaken. If the development is approved, there are no 'third party' (eg. neighbour) appeals allowed against that decision. In practice, some councils do notify neighbours of Category 1 developments out of courtesy. However, they are not required to do so and even if they do, no appeal rights exist.
Category 2 and 2A developments:
In Category 2 and 2A development applications, a notice describing the development, identifying the land and stating whether or not it is a non-complying development must be given by the relevant authority to the owner and occupiers of adjacent land [Development Act 1993 (SA) s 38( 3a ) and (4)]. Adjacent land includes land abutting as well as land which is no more than 60 metres away and separated only by a road, watercourse or reserve [Development Act 1993 (SA) s 4]. Persons who receive notice of Category 2 and 2A developments are entitled to make a written representation and may (at the discretion of the relevant authority) also make a verbal representation either for or against the development [Development Act 1993 (SA) s 38 (3a ) and (10)]. There are no third party appeal rights.
In Category 3 development applications, the notice must be given to adjacent owners and occupiers as well as those considered by the relevant authority to be significantly affected by the proposed development. Also, the general public must be notified by publication of a notice in a local or state-wide newspaper [Development Act 1993 (SA) s 38(5)]. The notice or newspaper advertisement must state where copies of the development application may be inspected and also the date by which representations must be lodged [Development Regulations 2008 (SA) reg 33(1)].
After a notice of a Category 2, 2A or 3 development application is published or it has been given to a person, any representation must be lodged with the relevant authority within ten business days. Late representations do not have to be considered by the relevant authority in making its decision. Also, anyone lodging a late representation on a Category 3 development will not be entitled to appeal without getting special permission from the Court. After the close of representations, the applicant has another 10 days to respond to the issues raised, although this time limit can be extended by the relevant authority.
When making a representation, it is generally advisable to limit the issues raised to 'planning' issues. Remember that copies of all representations are sent to the applicant for response. To avoid the possibility of defamation proceedings (which has happened in other States and has been threatened in South Australia), it is safest to stick to issues such as environmental impact, amenity, traffic etc. rather than the identity or character of the applicant.
There is no right to appeal in the case of Category 2 and 2A developments. In the case of Category 3 development applications the relevant authority must notify those making the representations within five business days of its decision and of their right to appeal. Any appeal must be commenced within fifteen business days of the date of the decision. If an appeal is lodged the court must notify the applicant who becomes a party to the appeal. The decision of a relevant authority does not become operative until the appeal is finally determined.
The Development Act 1993 (SA) provides for the Planning Minister to be able to take direct control over the assessment of developments of major environmental, social or economic importance by declaring such a development to be a major development. Once such a declaration is made, decision-making process is handled by the Governor (effectively the State Cabinet) with the assessment being undertaken by the proponent and the State department of planning and local government (Planning SA) [s 46].
Once the Minister has made the decision to declare a major development, the decision-making responsibility is taken away from the local council or Development Assessment Commission. The Minister can even 'call-in' a development from a council or DAC at any time prior to a decision being made.
The first step in the assessment of a major development is the Development Assessment Commission develops guidelines for and recommends to the Minister the level of Environmental Impact Assessment (EIA) that should be required for the development. These are:
- EIS (Environmental Impact Statement) - the most detailed form of assessment which includes rights of public comment and public meetings to explain the development proposal
- PER (Public Environment Report) - this involves less detailed assessment but includes rights of public comment and public meetings
- DR (Development Report) - this involves only a description and analysis of general issues surrounding the development and has a shorter public comment period (3 weeks instead of 1 month) and no public meetings
Before making its recommendation to the Minister about the level of assessment and the scope of matters to be dealt with in the assessment, the Development Assessment Commission must seek public submissions through newspaper advertisements.
Once the level and scope of EIA has been set, the proponent prepares an EIS (or PER or DR) which is placed on public exhibition to enable interested members of the community to comment. There is then a process of amendment (if required) before the Minister prepares an 'Assessment Report'. Ultimately, the decision is made by the Governor, whether or not to approve the development and if so, under what conditions. In reaching his or her decision, the Governor is not bound by the Development Plan in the same way that Councils and the DAC are bound (that is, not to make a decision 'seriously at variance' with the Development Plan). This means that zoning restrictions (such as the Hills Face Zone) can be overridden for Major Developments. The only obligation of the Governor towards zoning rules is to 'have regard' to those rules.
Other aspects of the Major Development assessment procedure which differ from 'normal' developments are that there is no legal right for a person making a 'representation' (submission) to be able to speak to that submission at the public meetings. Also, there is no obligation on the Governor to take public submissions into account when making a decision. In fact, the Governor doesn't even have to 'have regard' to these submissions. In practice, all public submissions are 'filtered' through the planning bureaucracy before reaching the political decision-making level. On the other hand, the Governor will have regard to the Planning Strategy for South Australia - a government policy document which is not normally referred to in development assessment as well as Environment Protection Policies under the Environment Protection Act 1993 (SA).
Once a decision has been made, there is no right of appeal by any party against that decision. Also, there is no right to challenge any aspect of the assessment or decision-making process in court, even in relation to a failure on the part of the Government to follow its own laws [Development Avt 1993 (SA) s 48E].
Where a state agency (a widely defined term which includes Government departments) proposes to undertake development, the normal development control regime referred to above does not apply and a special 'Crown Development' procedure is activated [ Development Act 1993 (SA) s 49]. Examples of the types of development covered by this section include:
- the infrastructure, equipment, structures, works and other facilities used in or in connection with the supply of water or electricity, gas or other forms of energy, or the drainage or treatment of waste water or sewage
- roads and their supporting structures and works
- ports, wharfs, jetties, railways, tramways and bus ways
- schools, hospitals and prisons
- all other facilities that have traditionally been provided by the State (but not necessarily only by the State) as community or public facilities.
With most forms of Crown Development (other than minor repair works), the application must be lodged with the Development Assessment Commission and notice must be given to the relevant local council which can, if it wishes, report to the DAC. The DAC must then assess the proposal and report to the Minister within three months of the application. If a proposal is seriously at variance with the Development Plan, or the building rules or the local council opposes the proposal, the DAC must make specific reference to these matters in a report to the Minister.
After receipt of the report the Minister may refuse or approve the development subject to such conditions as the Minister sees fit. However, if a development that is approved was previously refused by council or is seriously at variance with the Development Plan, the Minister must prepare a report which must be presented to both Houses of Parliament. No appeal lies against the Minister's decision.
The regulation of building work is contained in Part Six of the Development Act 1993 (SA). Building work is broadly defined as work or activity for the construction, demolition or removal of a building or any part of building or any excavation or filling in relation to a building. Further advice on whether particular work is defined as building work is available from the local council.
Notifications of any proposed building work must be given to the council within a certain period of commencement or completion of the work. Under the Regulations, a certificate or statement from a qualified tradesperson may have to be attached to a notification. The local council can give advice on the required notification periods.
The Development Act 1993 (SA) empowers an authorised officer, that is, a person appointed by a council or the Minister [ss 18,19] to enter and inspect any land or building. Where necessary an authorised officer may obtain a warrant allowing the officer to break into or pull down any building or building work, require documents to be produced and take copies and other such actions as the circumstances require. It is an offence to hinder an officer in any way.
A person must not occupy a building on which building work has been carried out after 15 January 1995 unless a certificate of occupancy has been issued for the building or the building is a type excluded by the Regulations [Development Act 1993 (SA) s 67]. The certificate will be granted by a council if satisfied that the building complies with all requirements and is suitable for occupation. If a certificate is refused, the applicant has twenty eight days to lodge an appeal to the Environment, Resources and Development Court.
A person may, with the approval of a council, occupy a building on a temporary basis without a certificate of occupancy.
Where building work affects the stability of other land or premises, the building owner must, at least twenty eight days before the building work is commenced, serve on the owner of the affected land or premise a notice of intention to perform the building work and the nature of that work. The building owner must take every precaution to protect the neighbouring land or premises, including taking any actions required by the council and must complete other work that the adjoining owner is authorised to require. Even where a building owner complies with these requirements, she or he may still be responsible for injury resulting from negligent building work [Development Act 1993 (SA) s 60].
A party wall cannot be built without the consent of the adjoining owner. If the owner of land proposes to build or convert an existing structure into a party wall, the building owner must serve notice on the adjoining owner describing the proposed wall. If the adjoining owner then consents to the building and its positioning, the cost of the building must be shared by the two owners in proportion to the use that each owner is likely to have of the wall. The owners must then register easements of support in respect of the party wall with the Lands Titles Office. The costs of this should be borne by the building owner. The building owner must take all reasonable steps to protect adjoining land and carry out work causing as little inconvenience as possible to the adjoining owner [Development Act 1993 (SA) s 61].
The building owner has a right to enter onto other premises to conduct building work in relation to party walls or stabilising structures and must give written notice to the adjoining owner of the proposed date and time. The notice may be given personally or by post at least fourteen days before entering the land or premises. In an emergency the notice must be given as early as possible. The building owner, accompanied by a police officer, may even break into the premises of the adjoining owner [Development Act 1993 (SA) s 63(3)].
If building work is defective and a defect arises from the wrongful acts or defaults of more than one person who would be jointly and severally liable for damage or loss resulting from the defective work and an action for loss or damage is brought against one or more of those people, the court may give judgment against each person for such amount as may be just and equitable, having regard to the extent to which the act or default of that person contributed to the damage or loss [Development Act 1993 (SA) s 72]. This section is designed to stop councils from being liable for the full amount of damages claimed in an action where the builder was mainly to blame for the defective building work, as both the builder and the council are joined as defendants to the action.
For houses built after January 1994, the time limit to take action for defective building work is ten years, after which no action for damages for economic loss or for the cost of rectifying the defective work may be taken. The ten year period runs from the completion of the building work [Development Act 1993 (SA) s 73].
Owners of houses built before January 1994, may still be able to make a claim after the ten year time limit has expired. A High Court case Bryan v Maloney has also held that subsequent owners may be able to take action against the builder where the work is defective. Subsequent owners are subject to the same time limits.
An authorised officer who considers there is a threat to safety because of the condition or use of a building or excavation, or that there is a threat to any State or local heritage place, may make an emergency order [Development Act 1993 (SA) s 69]. The order may written or verbal (but must be confirmed in writing the next day) and can require the owner to evacuate the land, carry out or stop any work.
If the owner does not comply with the emergency order, the council can carry out any necessary work and recover the cost from the owner. Similar provisions apply to the issue of fire safety notice [Development Act 1993 (SA) s 71].
The Development Act 1993 (SA) allows urgent building work that is needed to protect any person or building or in other prescribed circumstances. Where work is undertaken the relevant authorities must be notified as soon as possible and the person must apply for development authorisation. If development authorisation is refused, the land or building affected by the work must be returned, so far as is practicable, to its previous condition [Development Act 1993 (SA) s 54].
Where a developer receives an approval and commences the work, then ceases the work and leaves the building partially completed, the council can apply to the court for an order that the developer complete the building or demolish it [Development Act 1993 (SA) ss 55,56]. If the developer fails to comply with the court order the council can itself carry out the work and then take proceedings to recover the costs of so doing.
There are basically three types of legal action which can be taken to challenge the process or outcome of a development approval or refusal. These are merits appeal, civil enforcement or judicial review.
Merits appeals cover the situation where someone is unhappy with a decision to approve (or reject) a development application. This type of appeal seeks an order of the Environment Resources and Development Court to overturn or alter that decision. These actions are limited to certain types of development and qualifications exist as to who is entitled to appeal.
Whether or not you have a right to appeal against a development approval depends on whether you are the applicant or a third party (such as a neighbour). It also depends on the categorisation of the development. Only Category 3 developments (including most non-complying developments) can be appealed by third parties. An applicant for development authorisation has a right to appeal to the ERD Court against a refusal to grant development approval or against any conditions attached to that approval. The appeal must be instituted within two months after the applicant receives notice of the decision. The court has a discretion to extend this time limit in special circumstances.
In addition, an applicant also has a right of appeal against any other assessment, request, decision, direction or act of a relevant authority under the Act in relation to the development authorisation.
Where a development is non-complying, there is usually no appeal against a refusal of consent, concurrence or a condition attached to a consent. Some exceptions to this rule cover situations where the proposed development has become necessary either by reason of a change in the law regulating an existing use of land or generally by reason of an order with respect to the safety or condition of the building.
A third party (a person other than an applicant or a relevant authority) who makes a written representation on a proposed Category 3 development has a right to appeal against that decision or any conditions attached to it. A person who disagrees with a decision of a relevant authority, but who has not taken the opportunity to lodge a written representation during the public comment period is not entitled to appeal. It is not necessary to make a verbal representation before lodging an appeal.
An appeal by a third party must be commenced within fifteen business days after the date of the decision in the application. Often it takes local councils a week or more to notify representors of the decision, however it is the date of the decision, not the date of notification which starts the fifteen day appeal period. The court must then notify the applicant for development approval that the appeal has been lodged and that person automatically becomes a party to the appeal, as does the relevant authority which made the decision appealed against.
Where a third party appeals, the development cannot proceed until the appeal is dismissed, struck out or withdrawn or the questions raised by the appeal finally determined by the Court. Most appeals are first dealt with at a preliminary conference of the Court before being listed for trial. Most development disputes are resolved at or prior to the preliminary conference.
If it appears that a local council has made a mistake in categorising the development ( eg Category 2 instead of Category 3 ) a person who is an owner or occupier of land adjoining the site of the proposed development can institute proceedings in the Environment Resources and Development Court to have the issue of categorisation determined. Such proceedings must be instituted within two months after the landowner or occupier receives notice of the council’s decision on the proposed development. The court has a discretion to extend this time limit in special circumstances. If successful the process of assessment would need to be started again with the appropriate level of public notification.
Civil enforcement is legal action that can be taken by any person in relation to an alleged or anticipated breach of the Development Act 1993 (SA). A typical action would be against a person who undertakes development without approval, or fails to comply with conditions attached to the approval. This is not an appropriate form of action to complain about the council's decision-making process or any mistakes made.
Section 85 of the Development Act 1993 (SA) provides that "Any person may apply to the Court for an order to remedy or restrain a breach of this Act". The types of remedies that can be sought from the court include: injunctions, declarations and compensation (damages). The procedure for bringing section 85 proceedings is complicated and legal advice should be sought. There is also a three year limitation period which can serve to entrench long-standing illegal developments unless the Attorney-General agrees to extend the time limit for court proceedings.
Judicial review of administrative action can be used to challenge a development approval if it can be shown that proper processes have not been followed (eg. where a local council fails to properly advertise a development application). A typical outcome of judicial review would be a court order that the local council remedy any irregularities in its assessment process. This type of appeal usually needs to be instituted in the Supreme Court rather than the Environment Resources and Development Court.
Where there is a dispute about the building rules, a party to the dispute may apply to the court for a determination. The dispute must relate to:
- the effect of the rules in specific circumstances
- the manner in which they are to be carried into effect
- whether the rules should be modified
- whether the rules in a matter relating to building work have been satisfied
- the construction of a party wall and who is to bear the costs of its construction
- any other prescribed matter.
These disputes are heard and determined by one or more commissioners of the Environment Resources and Development Court (not a Judge) who will determine the matter as a building referee. The commissioner can however refer any matter of law to a Judge of the Court for determination. No appeal lies from a commissioner's decision on a question of fact.
The ERD Court has criminal enforcement powers by virtue of the offence provisions in the Development Act 1993 (SA). All offences are dealt with as summary offences and prosecutions must be commenced within three years of the date of the offence, unless the Attorney-General's authorisation has been obtained in which case it is up to ten years.
Fines which can be imposed by the court are significant. For example, a person who is convicted of undertaking development without appropriate authorisation [Development Act 1993 (SA) s 44], may be fined up to $120 000. An additional penalty can also be imposed up to the cost of the development that has been undertaken in contravention of that section. Furthermore, a default penalty of up to $500 per day may be imposed and applies for every day on which the offence continues after the date of conviction for the original offence. In extreme cases, persons who fail to comply with court orders to remove illegal development can be convicted of contempt of court. This situation occurred in 1999 when a householder was jailed for a short period over a failure to demolish illegal home extensions.
In most cases of undertaking development without approval, a relevant authority will usually allow a person an opportunity to rectify the situation by lodging a retrospective development approval.
- decisions of commissioners sitting without a judge
- decisions of a magistrate, master or registrar of the court
- orders of the court which do not finally determine the rights of parties with respect to the outcome of the case, for example, an order to one of the parties that she or he produce some documents to the court.
In all other cases the appeal is to the Full Court of the Supreme Court. Appeals can be made on matters of law to the Supreme Court as a right, while the court's leave to appeal is required on matters of fact [Environment, Resources and Development Court Act 1993 (SA) s 30].
Because any dissatisfied party can appeal against an ERD Court decision, it often arises that a party that is successful in the ERD Court has to defend its win in a second court case before the Supreme Court. This can have important consequences for third party appellants, who are typically local residents who have appealed against an inappropriate development in their neighbourhood. The main consequence is that the Supreme Court is not a "user-friendly" jurisdiction that encourages parties to represent themselves. It is also a riskier jurisdiction in relation to awards of legal costs against unsuccessful parties. This is discussed in the following topic Costs.
Generally, the practice in the ERD Court is for each party to pay their own costs. However, the court may order costs against the losing party in any proceedings where it is the opinion of the court that the proceedings are frivolous or vexatious, or the proceedings have been instituted for delay or obstruction. It is worth noting that this power has never been exercised in the lifetime of the ERD Court. It is generally safe to assume that any person who brings an appeal in good faith will not be ordered to pay the other side's legal costs, even if their case was hopeless from the start.
It is important to note that the attitude of the Court towards legal costs will depend on the nature of the dispute as well as the conduct of the parties. Costs will usually be awarded against the losing party in civil enforcement or judicial review cases. There is also some interstate and Federal precedent for the idea that public interest litigants should be protected from adverse costs orders, however this has not been fully tested in South Australian courts.
In all cases, the person bringing the legal action will have to pay statutory Court filing costs. In the ERD Court currently, the cost to lodge an appeal (as at 1 July 2014) is $217 plus $238 if the matter proceeds to trial. In the Supreme Court, the cost to lodge an appeal is currently (at 1 July 2014), $2323.
Compulsory acquisition of land is covered by the Land Acquisition Act 1969 (SA). Under this Act an authority, such as a local council or Transport SA, can acquire land or the right to place any easement, right of way or other licence on the land, whether an owner agrees or not.
An owner who has received a 'notice of intention to acquire land' must inform any prospective buyers, tenants or mortgagees of that fact. It is an offence not to disclose this information [s 13(2)].
To begin the process the authority must serve upon each person with an interest in the land a notice of intention to acquire land [Land Acquisition Act 1969 (SA) s 10]. Any person affected has thirty days after receiving the notice, to ask the authority to explain in writing the reasons and any details of any scheme that the acquisition may be proposed under s 11 of the Land Acquisition Act 1969 (SA). The authority must give this information. Typical reasons for compulsory acquisition include road widening, drain building or other public works.
Within thirty days after receiving either, the notice of intention to acquire land or the reasons of the proposal, a person may object by serving written notice on the authority requesting:
- it not to proceed
- alteration to the boundaries
- that any part of the land not be acquired or that further land be acquired.
In addition, a person can request that the authority not acquire the land on the grounds that the acquisition and any undertaking would:
- seriously impair an area of scenic beauty
- destroy or affect a site of architectural, historical or scientific interest
- adversely affect the conservation of flora and fauna that should be conserved
- adversely prejudice any other public interest.
See Land Acquisition Act 1969 (SA) s 12.
Within fourteen days of receiving a request, the authority must consider the matter and serve a written notice on the person indicating whether or not it agrees with the request.
Where a person has made a request and the authority does not agree with the request, the person can apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review of that decision [see s 12A(1)]. An application for review must be made within 7 days of being served with the authority's decision to refuse [see s 12A(2)].
A decision of SACAT in this instance is not subject to further appeal under section 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA).
The notice of intention to acquire land process does not apply to native title land. In this case, notice must be given to the native title holders or their registered representatives. The method of service is governed by the Native Title (South Australia) Act 1994.
Where the authority intends to acquire the land it must wait a minimum of three months after last serving a notice before it can proceed further. After at least three months, but before eighteen months or a longer period fixed either by:
- agreement between the authority and the interested parties;
- the Court (Land and Valuation Division of the Supreme Court or the Environment, Resources and Development Court; or
- the Minister, by notice in the Gazette, to allow adequate time for negotiation in relation to native title.
the authority must publish a notice of acquisition in the Government Gazette.
When the notice is published the land is held to be acquired by the authority. Copies of this notice must also be served on anyone with an interest in the land and on the Registrar at the Lands Titles Office so as to record the change on the title. In addition, the notice must be published in a newspaper circulating widely throughout the State.
If the authority decides not to proceed with any acquisition or after eighteen months or any longer period fixed after serving a notice of intention to acquire land it lapses, compensation may be claimed. Compensation must be claimed in writing within 6 months.
[see Land Aquisition Act 1969 (SA) ss 15 and 16]
Anyone who has land acquired is entitled to compensation to the value of the land and any loss suffered. When a notice of acquisition is served, if an agreement can be reached with the people affected, the authority must file a copy of the agreement in the court. If an agreement cannot be reached within two months either the authority or anyone affected by the notice can apply to the Land and Valuation Division of the Supreme Court to resolve the matter.
Authorities can come onto any land temporarily without having to acquire the land. The authority must give seven days written notice and can then come onto the land and commence work. This does not apply to land that is:
- a garden or orchard
- within 500 yards of a house
- within 500 yards of land acquired under the Land Acquisition Act 1969 (SA)
An authority temporarily occupying land may amongst other things, take soil samples, deposit material, make and use roads on the land or erect workshops for temporary use [Land Acquisition Act 1969 s 28].
Anyone affected by a temporary occupation can apply to the court for an order that the authority acquire her or his interest in the land, or within three months, apply for compensation. Special provisions apply to native title land. The Land and Valuation Division of the Supreme Court is the court with jurisdiction to hear disputes under this Act.
Environmental Law Fact Sheets, Environmental Defenders Office (SA) Inc (EDO).
Topics covered include Development Plan Review / Amendment, Development Assessment, Appeals and Civil Enforcement, ERD Court procedures, Freedom of Information etc. These are available on-line at http://www.edosa.org.au. If you would like hard copies please telephone the EDO on (08) 8359 2222.
SA.gov.au (Housing , property and land - building and development)
The South Australian Government website for planning has information on the planning system including assessment processes, major developments, crown developments and development plan amendment.
Copies of Development Plans may be accessed on the internet at: sa.gov.au or purchased from local Council offices.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.