Development (Miscellaneous) Amendment Act 2005
Background
The Development (Miscellaneous) Amendment Act 2005 was passed by State Parliament on 1 December 2005. The amendments were proclaimed in the Government Gazette on 12 January 2006. The effect of the changes is explained below.
Detail
* Note: those clauses that are marked with an asterisk are not yet operational. Clauses will become operational on a date to be proclaimed by Gazette notice.
(Section 4)
1.The definition of the ‘Building Code’ is amended to reflect new National terminology. The definition now no longer relates to the 1996 edition but refers to the Code as formally adopted by Ministerial gazette notice from time to time.
2.The definition of ‘development’ is expanded to clarify that:
- earth works prescribed by regulation are included in the definition of ‘development’ and
- the definition of ‘building work’ includes any incidental excavation or filling of land related to the construction, demolition or removal of a building. Earthworks not directly incidental to building are only development if specifically prescribed. Thus confirming that the incidental earthworks do not affect the notification or assessment path.
(Section 21A)
These provisions will enable the Minister to prepare and adopt, by notice in the gazette, a code(s) of conduct to be observed by members of the Development Assessment Commission and regional and council development assessment panels, as well as relevant officers acting under delegation.
These codes, and any variations to them, will be subject to consultation with the Environment, Resources and Development Committee of Parliament and the Local Government Association. Failure to comply with a code of conduct will be a ground for the removal of a member from a panel or DAC.
A standard code of conduct will promote consistency for members of development assessment bodies and provide a greater level of certainty for interested members of the community and applicants.
(Section 24)
Provides that councils are responsible for initiating PARs where a regional NRM Board has suggested that the Development Plan for the area needs to be amended. If the council does not agree to this request within a reasonable time, the Minister may initiate such a PAR. Note however, the council will be able to give the Minister reasons for its non-compliance and the Minister must not act until the council has made its submissions.
(Section 33)
This enables a planning authority to refuse a community title application if the authority considers division by community title is not appropriate. This overcomes the problems of a limited number of proponents using the Community Title Act to construct infrastructure to a lower standard than that required for the common form of land division into allotments and hence cause future maintenance problems.
(Section 35)
The amendment clarifies that where a development is neither designated as complying nor non-complying by the relevant Development Plan or the regulations, it shall be classified as “merit” development and assessed against the policies in the relevant Development Plan.
(Section 39)
This amendment allows a planning authority to return applications for development approval to applicants and private certifiers where there is an inconsistency between the Development Plan consent and the Building Rules consent.
(Section 41)
This amendment provides that the ERD Court may award costs to an applicant where a relevant authority does not make a decision to grant or refuse development approval within the maximum time limit fixed under section 41(2). The maximum time limits are set out in the Development Regulations were established in 1994 and were forwarded to councils in a summary form in a letter from the Minister in December 2005.
However, the Court has the discretion to decide not to award costs against a relevant authority if the relevant authority believed that the applicant failed to comply with the Act or the authority was not provided with appropriate documentation relevant to making a decision under the Act.
This section also now provides that where a merit application is overdue, the applicant may give notice to the relevant authority requiring it to make a decision within 14 days after service of the notice. If the relevant authority fails to make a decision within this timeframe, the application will have an immediate right of appeal to the ERD Court as if a refusal had been granted.
(Section 45)
This clause creates a new offence relating to the responsibility of a person who designs, manufactures, supplies or installs an item or materials in connection with the performance of any building work that fails to comply with the requirements of the Building Rules. However, it must be reasonable to rely upon the skills of the person who supplies, installs or manufactures the material in question.
(Section 49)
The amendment provides that the Development Assessment Commission will be responsible for providing notice of a Crown/public infrastructure development application under section 49 to the relevant Council (if any). Prior to this amendment, the State Agency that proposed to undertake the development had to forward those details direct to the Council and on occasions, this did occur..
(Section 50)*
This provision enables the Minister to set differential rates of monetary contribution in lieu of open space as opposed to the current metropolitan /non-metropolitan parts of the State. This will enable small rural towns to have a different rate to the large urban areas outside of metropolitan Adelaide.
It also enables the application of the open space contribution scheme to forms of development fixed in the regulations not currently caught by it.
The clause also ensures that the prescribed rate of contribution will not exceed 12.5% of land area, which is the current rate. (This provision is not yet in operation)
(Section 55)
This amendment will allow an application to be made by a relevant authority to the ERD Court if a development that is envisaged to be undertaken in stages is not undertaken or not completed in the manner or within the period contemplated by the relevant approval.
(Section 56B)*
The amendment introduces a scheme to require a council or private certifiers undertaking the assessment of development against the provisions of the Building Rules to have their assessment activities audited by an independent auditor on a periodic basis.
The auditor must check that the processes and procedures of the certifier associated with the assessment of development conform to the Building Rules and have been undertaken otherwise in accordance with the requirements of the Act. An auditor is permitted to check technical aspects of assessment of developments against the Building Rules.
An auditor must, before finalising a report, give a copy of the report to the council or private certifier and allow a reasonable time for a response with a view to correcting any error of fact. (This provision is not yet in operation)
(Section 57A)
This amendment establishes a scheme relating to voluntary Land Management Agreements between the proponent (as one party) and the Council/Minister or any other designated Minister or a Council (as the other party). The Land Management Agreement will bind the owners and where an agreement is linked to a development authorisation, it will bind any other person who has the benefit of the development authorisation and the owner of the relevant land (if he or she is none of the persons listed above).
Any LMA cannot require a person to make a financial contribution for any purpose not directly related to an issue associated with the development. (This provision is not yet in operation)
(Section 71A)
This clause introduces a head power prescribe minimum levels of council/DAC annual inspections of building work for prescribed classes of buildings as set out in their building inspection policy. These regulations may prescribe different levels for different classes of buildings.
(Section 92)
This clause introduces a regulation making power for the regulations to be able to prescribe situations where a person cannot act as a private certifier in respect of a particular development. This power will be in addition to the current restrictions set out in section 92(1)(a) to (c).
(Section 93)
This amendment enables a private certifier to approve a variation to a plan or other document at the Building Rules consent stage in order to take account of a requirement under this or any other Act provided that the certifier notifies the relevant authority. For example, the Building Code of Australia may require a variation such as the inclusion of a swimming pool safety barrier that has not been shown on the Development Plan consent documentation. The relevant authority can (subject to consideration) take such a variation into account when issuing its development approval without the need to grant a new Development Plan consent.
(Schedule 1)
Allows the fixing of expiation fees in the regulations in respect of any offence against the Act or regulations being a fee equal to 5% of the maximum fine a court could impose or $315, which ever is the greater.
