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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Development (Planning and Development Review) Amendment
Bill 2008
A BILL FOR
An Act to amend the Development Act 1993.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Development
Act 1993
4 Amendment of section 33—Matters against
which development must be assessed
5 Amendment of section 35—Special
provisions relating to assessment against Development Plan
6 Amendment of
section 37—Consultation with other authorities or agencies
7 Amendment
of section 38—Public notice and consultation
8 Amendment of section
39—Application and provision of information
9 Amendment of
section 41—Time within which decision must be made
10 Amendment of
section 88—Powers of Court in determining any matter
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Development (Planning and Development
Review) Amendment Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Development
Act 1993
4—Amendment of
section 33—Matters against which development must be
assessed
Section 33—after subsection (4) insert:
(4a) The regulations may exclude prescribed classes of development from
the operation of paragraph (a) of subsection (1) (so that an
assessment against the Development Plan and a development plan consent that
would otherwise be required under that paragraph need not be undertaken, sought
or obtained).
(4b) If—
(a) a development only requires an assessment under paragraph (b) of
subsection (1); and
(b) a council—
(i) is the relevant authority; and
(ii) is to make the assessment under that paragraph; and
(c) the council determines to grant consent under that
paragraph,
the council, as the relevant authority, must issue the relevant development
approval with the consent.
5—Amendment of
section 35—Special provisions relating to assessment against Development
Plan
(1) Section 35(1)—after "prescribed by the regulations or the
relevant Development Plan" insert:
and subject to any other provision made by this Act or applying under the
regulations
(2) Section 35—after subsection (1a) insert:
(1b) 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 (and that determination
will then have effect for the purposes of this Act).
(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.
(1d) To avoid doubt, subsection (1c) does not prevent a relevant authority
deciding not to grant development plan consent on account of its assessment of
the balance of the development under that subsection.
(1e) Subsection (1c) does not apply if, despite various aspects of the
development meeting any criteria for the development to be complying
development, the development, from an overall perspective, falls within the
category of non-complying development.
6—Amendment of
section 37—Consultation with other authorities or
agencies
Section 37(6)—delete subsection (6) and substitute:
(6) If a relevant authority is directed by a prescribed body to refuse an
application and the refusal is the subject of an appeal under this Act, the
prescribed body is a respondent to the appeal and the relevant authority may, on
application, be joined as a party to the proceedings.
(7) If a relevant authority is directed by a prescribed body to impose a
condition in respect of a development authorisation and the condition is the
subject of an appeal under this Act, both the prescribed body and the relevant
authority are respondents to the appeal.
7—Amendment of
section 38—Public notice and consultation
(1) Section 38(2)—delete subsection (2) and substitute:
(2) Subject to subsection (2a), the following provisions apply in
relation to the assignment of developments to these categories:
(a) the regulations or a Development Plan may assign a form of
development to Category 1 or to Category 2 and if a particular form of
development is assigned to a category by both the regulations and a
Development Plan—
(i) if the regulations provide that an assignment by a Development Plan
may prevail—the assignment provided by the Development Plan will, to the
extent of any inconsistency, prevail (subject to the operation of
paragraph (b)); but
(ii) in any other case—the assignment provided by the regulations
will, to the extent of any inconsistency, prevail;
(b) the regulations may assign a form of development to Category 2A and
this will prevail to the extent of any assignment provided by a Development Plan
under paragraph (a);
(c) any development that is not assigned to a category under
paragraph (a) or (b) will be taken to be a Category 3 development for
the purposes of this section.
(2) Section 38(2b)—delete subsection (2b)
(3) Section 38(3)—delete subsection (3) and
substitute:
(3) Where a person applies for a consent in respect of the
Development Plan for a Category 1 development—
(a) the relevant authority must not, on its own initiative, seek the views
of the owners or occupiers of adjacent or other land in relation to the granting
or refusal of development plan consent; and
(b) the following provisions of this section do not apply.
(4) Section 38(3a)—delete subsection (3a) and substitute:
(3a) Where a person applies for a consent in respect of the Development
Plan for a Category 2A development—
(a) the relevant authority must—
(i) subject to any exclusion or qualification prescribed by the
regulations—give an owner or occupier of each piece of adjoining land;
and
(ii) give any other person of a prescribed class,
notice of the application; and
(b) the relevant authority must—
(i) give consideration to any representations in writing made in
accordance with the regulations by a person who is entitled to be given a notice
under paragraph (a); and
(ii) forward to the applicant a copy of any representations that the
relevant authority must consider under subparagraph (i) and allow the
applicant an opportunity to respond, in writing, to those representations within
the period prescribed by the regulations; and
(c) if a representation is received under paragraph (b) within the
prescribed number of days, the relevant authority may, in its absolute
discretion, allow the person who made the representation to appear personally or
by representative before it to be heard in support of the
representation.
8—Amendment of
section 39—Application and provision of information
(1) Section 39—after subsection (2) insert:
(2a) If—
(a) a development is of a kind that is complying development;
and
(b) the development falls within a class of development prescribed by the
regulations for the purposes of this subsection; and
(c) the applicant has complied with the requirements of subsection (1)(a),
(c) and (d),
then the relevant authority must, in making an assessment as to development
plan consent, assess the application without requesting the applicant to provide
additional documents or information.
(2b) If—
(a) a development falls within a class of development prescribed by the
regulations for the purposes of this subsection; and
(b) the applicant has complied with the requirements of subsection (1)(a),
(c) and (d),
then—
(c) the relevant authority may, in making an assessment as to development
plan consent, only request the applicant to provide additional documents or
information in relation to the application on 1 occasion; and
(d) the relevant authority must make that request within a period
prescribed by the regulations.
(2) Section 39(3)(b)—delete paragraph (b) and substitute:
(b) if the request is not complied with within the time specified by the
regulations, the relevant authority—
(i) may, subject to subparagraph (ii), refuse the application;
and
(ii) must refuse the application in prescribed circumstances (including,
if the regulations so provide, in a case involving development that is
complying development).
(3) Section 39—after subsection (5) insert:
(5a) Without limiting subsection (3), if—
(a) an applicant requests time to address any issue related to the
application (including so as to prepare and submit any variation); or
(b) an applicant requires time to respond to any matter raised by a person
or body in connection with the application under this Act,
then, subject to the regulations, the time required by the applicant is not
to be included in the time within which the relevant authority is required to
decide the application.
9—Amendment of
section 41—Time within which decision must be
made
(1) Section 41(2)—after "the time prescribed under
subsection (1)" insert:
(other than an application that relates to development that is a
complying development)
(2) Section 41—after subsection (4) insert:
(5) If—
(a) a relevant authority does not decide an application that relates to
development that is a complying development within the time prescribed
under subsection (1); and
(b) the applicant gives the relevant authority a notice in accordance with
the regulations on the basis that the decision on the application has not been
made,
then—
(c) it will be taken that the relevant authority has, despite
section 35(1), refused to grant the application (and the relevant authority
will be taken to have given notice of its decision at that time (and will not
need to give any notice under section 40)); and
(d) subject to any exclusion or qualification prescribed by the
regulations, the relevant authority must refund the fee received by the relevant
authority under section 39(1)(d) in relation to the application.
10—Amendment of
section 88—Powers of Court in determining any matter
Section 88(2)(c)—after "Crown" insert:
, a relevant authority applying under section 37,