Which comes first, the land division or the building? Parliament will soon resolve this question once and for all.

LG Leader March 2015

As first reported by Kelledy Jones last year[1], the ERD Court’s decision in Paior & Anor v City of Marion & Ors (No. 3) [2014] SAERDC 42 made a number of findings which changed the way that Councils must process applications for:

  1. detached, semi-detached and row dwellings;
  2. “minor” variations; and
  3. retaining walls associated with dwellings and, in particular, their categorisation.

In respect of #1, the ERD Court followed previous decisions of the Supreme Court[2] in finding that where an application proposes the construction of a new dwelling on land, that dwelling is not a “detached dwelling”[3] as a matter of law unless the site upon which the dwelling is to be located comprises an allotment of land or otherwise provides the owner of the dwelling with similar, exclusive and unalienable tenure.

In the Paior decision however, the ERD Court went further than previous case law authorities in stating that the requisite tenure does not exist until such time as an application to divide land is lodged at the Lands Services Group.

This judgment has caused a great deal of consternation amongst planners, builders and the development industry generally[4].  It has also gained the attention of our Government.

On 12 February 2015, the Development Regulations 2008 were amended to insert a new regulation 47A which specifically deals with minor variations and allows such variations to be approved without the requirement for a new development application to be lodged, provided that the variation is not inconsistent with another consent, thereby addressing #2 above (though what “minor” means is not entirely clear and will, no doubt, be the subject of litigation in the future).

In respect of #1, the Development (Assessment) Amendment Bill 2015 was introduced into Parliament on 25 February 2015.  This Bill proposes to address this finding by:

  • inserting a new section 33(3a) into the Development Act 1993 to make it clear that where a development requires more than one consent, it does not matter in which order the consents are granted; and
  • amending the Development Regulations 2008 to make it patently clear that a reference to a “site” in the definitions of developments in Schedule 1 to the Regulations only means a site that will be exclusively occupied and that separate ownership, or title to that site will not be required.

We consider that the change to the Regulations will put this issue to rest, once and for all such that dwelling applications can once again be processed before associated land divisions.

The change to section 33 of the Act is arguably superfluous to this issue as it is the legal interpretation of the term “site held exclusively” in each of the definitions of “detached dwelling”, “semi-detached dwelling” and “row dwelling” which led to the various judgments requiring land divisions to be approved before dwelling applications.

The new section 33(3a) will allow Building Rules consents to be granted before Development Plan consents, and land division consents to be granted before Development Plan consents and Councils will need to consider their lodgement processes to account for this change.

The Bill also proposes the following amendments to the Act which are not directly relevant to the Paior judgment:

  • section 5 to be amended to alter the process by which the Regulations which defined terms used in Development Plans are varied or amended. It is proposed that the Minister will oversee such changes and will directly consult with the LGA and the Advisory Committee on proposed changes before they are finalised and Gazetted.  The current process is overseen by the Advisory Committee and requires public notification of proposed changes to the Regulations (in addition to notice to the LGA) and public submissions may be made in this regard.  This change is required to allow the Regulations to be amended as per the description above and is intended to come into effect immediately but will be delayed if the current requirements for public consultation are not amended;
  • section 35 to be amended to insert a new subsection 35(1ba) which will allow the Minister to issue (through the Gazette) guidelines for “minor variations” from complying development and any variation consistent with the guidelines will be taken to be a “minor variation” and for the purposes of the Act. This development may be a positive one given that the term “minor variation” in the context of complying developments is completely undefined.  The lack of certainty in what is and is not “minor” causes issues for both councils and private certifiers when issuing Development Plan consents for residential code developments.  Some guidance from the Minister will likely increase certainty and consistency in such decisions.

We will monitor the Bill’s progress through Parliament and keep you updated.  We will also be interested to see whether #3 above will be addressed by the Government and we will monitor any such proposals.

[1] “When is a dwelling a “detached dwelling”? – the goalposts shift again”; and “Beware informal application processes”

[2] City of Port Adelaide Enfield v Moseley [2008] SASC 88 and McNamara v City of Charles Sturt & Attard [2001] SASC 368

[3] Due to requirement that they also be located on a “site held exclusively with the dwelling”, this same reasoning applies to semi-detached and row dwellings

[4] See for example John Stokes “SA held up by bureaucratic nightmare”, Indaily, 10 December 2014 , http://indaily.com.au/opinion/2014/12/10/sa-held-bureaucratic-nightmare/ George Inglis, “Don’t blame the planners”, Indaily, 11 December 2014, http://indaily.com.au/opinion/2014/12/11/dont-blame-planners/