The Planning, Development and Infrastructure (General) Regulations 2017 are now complete and our new development system is largely revealed — what does this all mean?

In this Alert, we analyse several key components of the new Regulations and their implications for councils ahead of the expected commencement of the PDI Act for rural and regional councils on 1 November 2019 and Metropolitan Adelaide Councils next year.

Regulated Trees

As intimated by DPTI (and as discussed in our  recent LG Leader), the regulated tree provisions of the new Regulations are largely unchanged from the current Development Regulations 2008. This is a disappointing outcome given the difficulties that regulated trees can cause for relevant authorities and developers, a large number of which were caused by changes to the Development Regulations in 2011.

Changes in the classification of a building = development requiring approval

In an important step, regulation 3E of the new Regulations provides that “any work or activity that results in a change to the classification of a building under the Building Code is prescribed as building work for the purposes of the Act”. This regulation addresses concerns arising from the ERD Court decision in The Oaks Hotels & Resorts P/L v City of Holdfast Bay & Anor  [2010] SAERDC 16 that changes in building classification – such as the commencement of short term accommodation in a Class 2 building – can occur without the need for development approval.

Who is the relevant authority?

Regulation 22 provides that an assessment manager is the relevant authority for:

planning consent for deemed-to-satisfy development (including where there are 1 or more minor variations); and

planning consent for performance assessed development other than where public notice is required to be given; and

land division consents.

The Assessment Panel will be the relevant authority for all performance assessed development which requires public notification. The Planning and Design Code will specify these forms of development. It will be up to the relevant Assessment Panel to delegate the ability to determine these forms of development to the assessment manager or otherwise – for instance where no representations are received on a performance assessed development.

The PDI Act specifies that councils are the relevant authority for building consents. As is the case now, these functions and powers can be delegated by councils to staff.  Regulations 25 and 26 of the new Regulations require that:

advice from an accredited professional – building level 1 must be sought for any building application proposing any class of building which is more than 3 storeys or has a floor area in excess of 2,000 square metres;

advice from an accredited professional – building level 1 or level 2 must be sought for any class of building which has up to 3 storeys or a floor area up to 2,000 square metres;

advice from an accredited professional – building level 1, 2 or 3 must be sought for any class 1 or 10 building which is no more than 2 storeys and which has a floor area of no more than 500 square metres.

The effect of these requirements is that councils will need to either employ, or contract accredited professionals with building accreditation to be able to determine applications for building consents under the new Regulations.

Assessing development applications

Below are key considerations from the new development application assessment ‘system’.

Development applications can be lodged in hard copy at the principal office of the relevant authority (which should be the relevant council office in most areas) or via the SA planning portal (see regulation 29(1) of the new Regulations).

The new development application verification process in regulation 31 has been clarified. Upon receipt of a development application, a relevant authority must:

• determine the nature of the development; and
• determine the assessment pathway for the development; and
• confirm that the relevant authority is the correct relevant authority for the application; and

• if the relevant authority is the correct relevant authority, confirm that the correct plans, documents and fees are provided; and
• place a notice on the SA planning portal that the application will be assessed by the relevant authority.

The verification process must occur within 5 business days after receiving an application.

Importantly, the assessment timeframes in regulation 53 of the new Regulations run from the date when the notice is placed on the SA planning portal as per the above – i.e. at the end of the verification process (see regulation 53(2)).

Assessment timeframes in regulation 53 have not changed substantially from the draft Regulations. Public notification, referral and concurrence timeframes run concurrently as per regulation 53(3).

Minor variations

Regulation 65 allows for minor variations to development applications to occur in a manner akin to minor variations under regulation 47A of the Development Regulations, albeit with the addition of requirements for endorsements on decision notification forms and plans to ensure better record-keeping of such variations.

Land divisions

Land division provisions in the new Regulations are similar to those in the current Development Regulations with the exception that electrical services can be required for all land divisions, not just those in declared underground mains areas.

Building safety

Regulation 93 of the new Regulations sets out building work notifications.  Councils are still able to specify building notifications in addition to the mandatory notifications. For stage notifications, 1 business days’ notice is required within Metropolitan Adelaide and 2 business days is now required outside of Metropolitan Adelaide.

Expiation fees have been imposed for failing to provide smoke alarms in class 1 and 2 buildings contrary to regulation 95 which may assist in better enforcement of this requirement.

Class 1 buildings will require a certificate of occupancy before they can be lawfully occupied. Councils will need to be ready to ensure that certificates are obtained and records kept. Regulation 103(1) exempts class 10 buildings from the requirement for a certificate of occupancy.

Regulation 103(3) provides an exemption for the need for a Statement of Compliance for buildings constructed with a designated building product (defined by Notice A Gazetted on 27 June 2019, page 2307 to mean ACP or similar materials) in certain circumstances.  This measure is intended to ‘protect’ building owners where ACP has been used in a building and the builder and/or other relevant professionals have refused to complete the Statement.

Regulation 104(9) introduces a new expiation fee where a Statement of Compliance is not provided in accordance with law. Again, this measure will assist councils in better enforcing this requirement.

Regulation 126 of the new Regulations introduces expiation fees for breaches of the following sections of the PDI Act:

section 151(5) – where a building is occupied contrary to the building classification appropriate for its use;

section 152(1) where a building is occupied in the absence of, or contrary to, a certificate of occupancy;

section 155(8) where an emergency order requires work to be carried out, and the owner has failed to notify the authorised officer who issued the order; and

section 157(5) where the Building Fire Safety Committee has issued a notice requiring a report and the report is not provided.

Please note that there are no expiations for breaching substantive requirements of an emergency order or a notice issued by the BFSC. In these circumstances, punishment for the relevant offences can be imposed by way of a prosecution only.

Enforcement and compliance

Service of notices by email is permissible under regulation 117 of the new Regulations but, unfortunately, service by placing a notice in a prominent place on land (ala the Local Nuisance and Litter Control Act 2016) is not.

Unfortunately, no expiations have been included for any offences under section 215 of the PDI Act (being the equivalent of section 44 of the Development Act 1993).   Further and more disappointingly, there will not be any ability to issue an expiation where a person breaches or otherwise fails to comply with an enforcement notice under section 213 of the PDI Act (being the equivalent of section 84 of the Development Act)

Exemptions and inclusions to the definition of “development”

As per clause 1 of Schedule 3, the Planning and Design Code will specify areas where excavation and/or fill of over 9 cubic metres constitutes “development”.  Such activities within a public road or public road reserve or in an emergency are exempt regardless of where they occur.

Clause 2 of Schedule 4 exempts “the placement, installation or construction of playground, exercise or recreation equipment in a recreation area” from requiring development approval, overcoming current Supreme Court case authorities which mean that only children’s playground equipment and not recreation equipment generally is exempt from requiring approval.

Tree houses and cubby houses are exempt from requiring development approval pursuant to clause 4(1)(j) of Schedule 4 provided that they do not have a floor area in excess of 5 square metres.

Clause 5(2)(d) of Schedule 4 now expressly mentions alpacas and donkeys as animal keeping activities which require development approval.

There is no change from present requirements to fences and retaining walls (and combinations thereof).

Please contact Victoria Shute with any questions, on 08 8113 7104 or vshute@kelledyjones.com.au.