This section deals with land-use planning and the assessment of development proposals. Most of the law in this area is contained in the Planning, Development and Infrastructure Act 2016 (SA) and all references are to the Planning, Development and Infrastructure Act unless otherwise stated.
A new planning system
The Planning, Development and Infrastructure Act 2016 (SA) was assented to on 17 April 2017, and has been gradually implemented across 5 years. The new planning system fully commenced on 19 March 2021 and has now completely replaced the previous planning system under the Development Act 1993 (SA). The Development Act 1993 has been repealed and no longer applies to the planning and development process in South Australia. The Planning, Development and Infrastructure Act 2016 (SA) has been implemented in three phases across all council regions in South Australia.
The three phase implementation of the new Planning, Development and Infrastructure Act 2016 was implemented as follows:
Phase 3 of the implementation of the new development scheme applies to the following council areas:
| Adelaide | Light | Port Lincoln |
| Adelaide Hills | Marion | Port Pirie |
| Adelaide Plains | Mid Murray | Prospect |
| Alexandrina | Mitcham | Salisbury |
| Barossa | Mount Barker | Tea Tree Gully |
| Burnside | Mount Gambier | Unley |
| Campbelltown | Murray Bridge | Victor Harbor |
| Charles Sturt | Norwood, Payneham & St Peters | Walkerville |
| Copper Coast | Onkaparinga | West Torrens |
| Gawler | Playford | Whyalla |
| Holdfast Bay | Port Adelaide Enfield | Yankalilla |
| Kangaroo Island | Port Augusta | Metro Coastal Waters |
The key feature to the new planning system is the replacement of the current Development Plan process with the new Planning and Design Code. Under the new system, development applications will be submitted and tracked through an online ‘ePlanning’ portal. The new Planning and Design Code will be applied in each region in a manner consistent with the relevant regional development plan.
To determine what planning policies apply to each council area, or to browse the new Planning & Design Code, visit the PlanSA website (opens new window).
Under the Act, there are several designated authorities who are responsible for assessing development and planning applications.
Relevant authorities
Under the new Planning, Development and Infrastructure Act 2016 (SA), a number of ‘relevant authorities’ will be able to make decisions about development and planning applications. These ‘relevant authorities’ include:
The Minister for Planning and Local Government
The Minister for Planning (or a delegate) is primarily responsible for assessing major development applications for infrastructure in South Australia. These include development associated with power, water, waste, education and ports (sea and air). A list of current major development projects in South Australia is on the Plan SA – Major projects webpage (opens new window).
The State Planning Commission (SPC)
Under the Act the State Planning Commission (SPC) was established as South Australia’s main planning and development assessment authority [s 17, s 22 Planning, Development and Infrastructure Act 2016 (SA)]. No members of parliament or local government may sit on the State Planning Commission. The State Planning Commission is comprised of experts from economics, urban design, construction, social and environmental policy and public administration [s 18(2)] to promote transparency and accountability for planning decisions, outside of political influence.
The State Planning Commission is responsible for assessing applications for restricted development outside of local council areas, or as directed by the Minister from time to time. The State Planning Commission may also prepare state planning policies to establish South Australia’s long term planning and development goals and requirements.
The State Planning Commission is responsible for establishing the State Commission Assessment Panel. The State Commission Assessment Panel (SCAP) has various functions and duties, including:
Assessment Panels
The SPC may also establish other assessment panels [s 29(1)(a)], specialised assessment panels [s 82] or specialised committees [s 29(1)(b)] to assist in making decisions on complex development.
There are different types of assessment panels:
Building Technical Panel
The Building Technical Panel is a committee of four qualified individuals, with experience in building design, construction, engineering services, surveying and fire safety operations. The panel is authorised to perform some functions of the State Planning Commission, including:
The Building Rules are used to assess development applications were building work is required.
Joint Planning Board [s 35, s 36]
After seeking approval from the State Planning Commission (SPC) the Minister may enter a planning agreement in relation to development relevant to a specific area of South Australia (s 35(1)). The planning agreement may be between the Minister and:
In connection to the planning agreement, the Minister may establish a joint planning board [s 36]. The joint planning board oversees the implementation of the planning agreement, and may establish specific committees to assist with carrying out the objectives of the planning agreement [s 38]. The joint planning board can be abolished by the Minister if the planning agreement is terminated [s 36(3)].
Assessment Managers
Each assessment panel or committee is managed by an Assessment Manager, who is a professional member of the development industry and has technical skill and expertise to advise and coordinate the Assessment Panel.
Complaints
Complaints against assessment panels must be lodged with the State Planning Commission. Complaints should be lodged within six months of when the incident is believed to have occurred. More information about complaints can be found on the SA Planning - Complaints About Assessment Panels webpage (opens new window).
Accredited Professionals
The Planning, Development and Infrastructure (General) Regulations 2017 (‘the regulations’ set out certain Accredited Professionals [r 22, r 25]). Examples of accredited professionals who are permitted to assess some development applications include assessment managers, some planning officers, surveyors and independent technical experts.
Examples of development applications that may be assessed by an Accredited Professional include (but not limited to) developments that:
Councils
Local Councils are the relevant authority for making decisions about certain building-related development applications. Otherwise, a council-appointed assessment panel and assessment manager is the relevant authority for development applications within that Council zone. The Council Assessment Panel (CAP) is appointed by local council, and replaces the council’s Development Assessment Panel under the old Development Act 1993 (SA).
The CAP and assessment manager are considered a relevant authority in their own right and are not considered a delegate of the Council. Council areas are defined under the Local Government Act 1999 (SA). For more information on local councils generally, see the ‘Local Government’ section of the Law Handbook.
Development applications that may be determined by Council, the Council Assessment Panel or Assessment Manager include:
State Planning Policies
The State Planning Commission establishes and maintains the State planning policies for South Australia. The State planning policies are a statement of government policy on desired future directions on a range of economic, social and environmental issues. The concept of an overall strategy is supposed to provide guidance to government agencies and local government in carrying out its various planning functions. Planning regions are are required to establish their own regional plan, which must be be consistent with the State planning policies.
As the State Planning Policy is essentially 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 Major Development (and Environmental Impact Statement), is not to be taken into account for the purposes of any particular development decision making.
The Planning, Development and Infrastructure Act 2016 expressly provides that the State Planning Policy is not to be taken into account for the purposes of assessing it against an assessment or decision for development approval. As such legal action cannot be brought on the basis that an assessment or decision on an individual development application is inconsistent with the State Planning Policy [s 58(4)].
Planning Regions
Under the Act [s 5(1)] the SA Governor has divided South Australia into specific planning regions. The planning regions can change from time-to-time, and must be proclaimed in the SA Gazette. The current planning regions are:
Each planning region can also be comprised of sub-regions when appropriate, and has its own plan to guide development within that designated region. The purpose of the region plans are to identify specific development for that area. Regional plans for each region are available on the PlanSA - Regional Plans webpage (opens new window).
Planning and Design Code
The most important document in the day-to-day assessment of development applications is now the Planning and Design Code (the Code). The Code includes '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 Planning and Design Code.
Under section 66 of the new Planning, Development and Infrastructure Act 2016 the Planning and Design Code will, among other things:
The previous Development Plan process has been replaced with the new Planning and Design Code. The Code is implemented through a new online planning system. Development applications are now submitted and tracked through an online ‘ePlanning’ portal. The Planning and Design Code will be applied in each planning region in a manner consistent with the relevant regional development plan.
For more information about what the changes under the Planning, Development and Infrastructure Act 2016 (SA) will mean for a local council, visit the Plan SA website or contact the local council authority.
The Planning and Design Code sets out the various Zones or Sub-zones that a development may be characterised into (for example, commercial and business zone, rural living zone etc.) Each zone has specific outcomes that it wishes to achieve through the development.
To determine what planning policies apply to a particular council area, or to browse the new Planning & Design Code, visit the Plan SA website (opens new window).
Practice Directions and Practice Guidelines
The State Planning Commission may issue Practice Directions. The purpose of a Practice Direction is to provide direction about specific procedural requirements or procedures in relation to any matter which may arise under the Act [s 42]. The SPC may also make a practice guideline in relation to the interpretation, use or application of the Planning Rules or Building Rules [s 43].
Practice Directions and Practice Guidelines issued by the SPC must be:
[s 42(4) and s 43(4), Planning, Development and Infrastructure Act 2016 (SA)].
The Planning, Development and Infrastructure Act 2016 (SA) contains procedures for amendments to various development policies and strategies. This includes amendments to the Planning and Design Code. This procedure involves public consultation and engagement, to provide the community with the opportunity to make submissions about the proposed amendments. The Community Engagement Charter (see below) establishes key principles and processes to guide how public consultation is to be conducted, before amendments to development policies are made [s 75, Planning, Development and Infrastructure Act 2016 (SA)].
Minor or operational amendments to the Planning and Design Code may be made by the Minister, and published in the state Gazette [s 76]. Examples of minor or operational amendments include changes to required forms, the removal or inclusion of specific Stage Heritage listed sites or buildings, correcting an error etc.
Under the Act, the State Planning Commission (SPC) is responsible for establishing and maintaining the Community Engagement Charter (the Charter) [s 44(2)]. A copy of the Community Engagement Charter is available on the Plan SA - Community Engagement Charter webpage (opens new window).
The Charter sets out guidelines and process for development bodies to consult with the community on state planning and local development policy. The Charter concentrates on including the community in the development of planning policy. It does not include community engagement for the development assessment of specific development projects. See also 'Appeals' generally.
For example, community members may be concerned about a proposal to rezone certain land from 'light' to 'general' industry. These concerns may be addressed during the planning policy 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 Charter has a statutory role under the new planning and development laws. It must be used to guide how development authorities seek public participation when amending development policies or developing new policies.
The Charter consists of mandatory requirements, general principles, and performance outcomes for community engagement. The Charter must be used to guide public consultation in respect of developing or amending the following planning policies and strategies:
Mandatory requirements
Development and planning bodies which the Charter applies to must comply with the mandatory requirements under the Charter. The relevant mandatory requirements depend on the consultation category that the proposed amendment to development policy relates to [see s 44(6) of the Act for example].
Table 1: Sets out the mandatory community engagement requirements, depending on the type of development policy.
| Consultation Category | Mandatory Requirement |
| Proposals that are specifically relevant to a particular Council or Councils (where Council did not initiate the proposal). | That Council or Councils must be directly notified of the proposal and consulted. |
| Proposals that are generally relevant to Councils. | The Local Government Association must be notified in writing and consulted. |
| A proposal to enter a place within the Planning and Design Code as a place of local heritage value.q | The owner of any land on which the place resides, must be directly notified in writing of the proposal and consulted for a minimum period of four weeks. |
| A proposal to amend the Planning and Design Code to include any heritage character or preservation policy that is similar in intent or effect to a local heritage listing. | The owner of any land on which the place resides, must be directly notified in writing of the proposal and consulted for a minimum period of four weeks. |
| Infrastructure delivery scheme. | Landowners affected by the scheme must be directly notified in writing of the scheme under section 166 of the PDI Act for a minimum of four weeks. |
Table 1: The content of Table 1 is reproduced under Creative Commons Licence and is attributed to The Department of Planning, Transport and Infrastructure, the Government of South Australia, Community Engagement Charter – April 2018, Sourced on 17 February 2021, https://plan.sa.gov.au/resources/planning/community_engagement_charter.
Principles of the Community Engagement Charter
The Community Engagement Charter seeks to ensure communities have enough time and the opportunity to participate in consultation, or access to information, about policy planning and development [s 44(3)].
The Charter sets out, among other things that the engagement processes must be:
Performance Outcomes & Measuring Performance
The Charter also outlines performance outcomes (from successful community engagement) and how the performance outcomes are measured. A copy of the Community Engagement Charter is available on the Plan SA - Community Engagement Charter webpage (opens new window).
Compliance with the Community Engagement Charter
The State Planning Commission is responsible for ensuring that the Charter is complied with. The SPC may provide direction to development body or intervention if it considers the Charter is not being complied with. In some cases, the SPC may intervene and undertake the community engagement process on behalf of the development body. In these circumstances the SPC may recover the cost of undertaking the community engagement from the development body.
The State Planning Commission can also direct a planning entity or local government authority to consult with a particular person in the community or community body to ensure the objectives of the charter are met.The Community Engagement Charter applies to various development and planning bodies, including:
Amendments to Planning and Development Policies
The types of planning policies that may be amended under the Act are:
Designated development bodies may propose to prepare a new planning policy, or amend an existing policy under the Act. The process for a development body initiating the creation of a new planning policy, or proposing an amendment to an existing policy is set out below.
Step 1:
The designated development body (i.e. Council) initiates a proposed new policy or an amendment to a specific development policy, and outlines the engagement process to be followed.
Step 2:
Minister for Planning approves the preparation of the new policy document or proposed amendments [s 73(2)].
Step 3:
The designated development body (i.e. Council) prepares draft of the new policy document or proposed amendments to an existing policy.
Step 4:
Designated development body undertakes community engagement and consultation in accordance with Community Engagement Charter about the new policy or proposed amendment [s 73 (6)(b)]
Step 5:
The outcomes of community engagement and consultation are reported to the Minister for Planning in accordance with practice directions [ s 73(7)]. A copy of the report is made available on the SA Planning Portal [s 73(8)].
The State Planning Commission also checks the engagement process under Charter has been followed [s44(10, s 73(6)(e) & (f), and prepares a report for ERD Committee [s 74(3)].
Step 6:
After having received the report, the Minister then determines whether to adopt the new policy, accept the amendments of the existing policy, or make alterations [s 73(1)(c) and (d)]
If the Minister decides to adopt the new policy or amendments, the must be published (either in the Gazette if State Planning Policy, or one the SA Planning Portal [ss 73(12)(a) and (b)]. The new policy or amendments do not take effect until they are published, or from a later date specified by the Minster [s 73(12)(c)].
Step 7:
The Minister (or the SPC on the Ministers behalf) provides information about the new policy or amendments to the Environment, Resource Development Committee of Parliament within 28 days of adopting the new policy or amendment [s74 (2)]. The information provided to the ERD Committee must include a report setting out the reasons for the amendment or new policy, an outline of the consultation process undertaken, and any other relevant material or information prescribed in the regulations [s 74(3)]. The ERD Committee then has 28 days to resolve to:
If the ERD Committee has not come to any resolution after 28 days then it is presumed that the ERD Committee does not object to the new policy or amendment [s74 (5)].
Step 8:
If an amendment is suggested
if the ERD Committee suggests an amendment, the Minister may:
if the policy is objected to
If the ERD Committee continues to object to the policy, the policy (new or amended) is laid before both Houses of Parliament for discussion and resolution [s 74(11)]. If either House of Parliament passes a resolution to disallow the policy then policy ceases to have effect [s 74(12)]. If the policy has been through the process of amendment that has been disallowed, the original policy will continue to apply as it if had not been amended by the proposed amendment [s 74(12)]. Notice of the resolution must be published in the state Gazette.
Community Engagement on Development Applications
The Community Engagement Charter does not have a statutory role in the assessment of development applications. The relevant public notification requirements and feedback procedures in relation to development applications are set out in the Act and regulations. These requirements vary across the different assessment pathways within the new planning system. See 'Public Consultation'.
Amendments to the Community Engagement Charter may be proposed by the State Planning Commission (SPC) or at the request of the Minister.
The SPC must:
[s 45(2), Planning, Development and Infrastructure Act 2016 (SA)]
The SPC must also prepare a report on any matters raised during consultation, and provide the report to the Minister [s 45(3)]. The Minister can then decide to adopt the Charter as amended, make further alterations, or decide not to proceed with the proposed amendments [s 45(4)]. Amendments to the Charter do not take effect until it is published on the SA Planning Portal or any later date specified by the Minister [s 44(5) & (6).]
Parliamentary Scrutiny – ERD Committee
Within 28 days of adopting any amendments to the Charter, the Minister must refer the Charter (including any reasons for proposed amendments, information about the consultation period and feedback) to the Environmental, Resource and Development Committee (ERD Committee). The ERD Committee then has 28 days to review the Charter and relevant materials, and decide whether it will:
[see ss 46(1)-(3)].
If the ERD Committee does not provide a response within 28 days of the matter being referred from the Minister, it is presumed that the ERD Committee does not object to the Charter or amendment, or propose any amendments
[see s 46(4)].
If the Minister has already consulted the ERD Committee before the finalisation of a proposed amendment to the Charter, the ERD Committee may resolve that the amendments do not need to be referred back to the ERD Committee for consideration when it is approved by the Minister [s 46(11)].
If the ERD Committee proposes amendments to the Charter, the Minister may proceed to make the amendments, or report back to the ERD Committee with reasons why the Minister is not prepared to make the proposed amendments [s 46 (7)]. The ERD Committee may then decide whether or not to object to the proposed amendments to the Charter. If the ERD Committee objects to the amendments, copies of the Charter and proposed amendments must be laid before both Houses of Parliament [s 46(8)]. If either House of Parliament passes resolution not to support amendments to the Charter, then the amendments will cease to have effect [s 46(9)]. A resolution by Parliament must be passed within 14 sitting days after the day on which the relevant amendments and Charter were laid before the house of parliament [s 46(10)].
The Planning, Development and Infrastructure Act 2016 (SA) provides that 'no development may be undertaken unless the development is an approved development' [s 101]. 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 3] in very wide terms and it includes building work, a change in the use of land, cutting, damaging or felling of significant trees, excavating or filling land and land division. Building work includes construction as well as the demolition or removal of a building. 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 Planning Development and Infrastructure (General) Regulations 2017 (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.
Under the new Planning, Development and Infrastructure Act 2016 (SA), a number of ‘relevant authorities’ will be able to make decisions about development applications. These ‘relevant authorities’ include:
See 'Planning and Development – Assessment Authorities'.
State Planning Commission
The State Planning Commission is a special statutory body responsible for certain types of development or development in certain areas. The SPC is also the relevant authority if a local council is itself the developer or has a conflict of interest over the development. The Planning, Development and Infrastructure Act 2016 (SA) and Planning, Development and Infrastructure (General) Regulations 2017 (SA) set out the different circumstances in which the SPC or local council is responsible for a particular development. Examples of situations where the SPC would be the relevant authority are:
Where the State Planning Commission is the relevant authority and the proposal involves building work, the SPC can refer the building aspects of the assessment to the council or a private certifier [Planning, Development and Infrastructure Act 2016 (SA) s 99(d)].
Having determined to which body the application should go, it is then necessary to choose the appropriate type of application, and assessment pathway.
Under the Planning, Development and Infrastructure Act 2016, the process for assessing standard developments, developments which are exempt from approval requirements, and accepted developments (requiring Building Consent only) have been introduced. Development approval may include approval for:
An application for development approval can be lodged via the Planning Portal on the PlanSA website.
Transitional provisions – Development Act 1993 (SA)
A development which has previously obtained development approval under the previous Development Act 1993 (SA) can be undertaken and completed under that approval without needing further approval under the new Act [see s 133, Planning, Development and Infrastructure Act 2016 (SA) ].
Categories of Development and Assessment Pathways
Where a proposed development is assessed, different rules and guidelines will apply depending upon whether the development is described as:
Further information about assessment pathways is available on the Plan SA - Assessment Pathways webpage (opens new link).
1. Exempt Development
An exempt development does not require development assessment or approval. The types of development that are considered ‘exempt’ development are set out in the regulations or in the Planning and Design Code.
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 not exceeding 60,000L in volume (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.
2. Accepted Development
Development falls within the category of accepted development if it is classified by the Planning and Design Code or the regulations as ‘accepted development’ [Planning, Development and Infrastructure Act 2016 (SA), s 104(1)].
Accepted development does not require planning consent, and includes minor and standard applications which do not require planning approval, or may only require Building Consent. See 'Building Consent - Complying Building Work' below.
Accepted developments that require Building Consent are assessed by local councils or a private building certifier.
Examples of accepted development include:
The accepted development category applies in most areas of South Australia with exceptions including Flood Zones, the Hills Face Zone and heritage areas.
If it is determined that an application falls within the category of accepted development, the assessing authority (local council or private building certifier) must advise the applicant within 10 business days after receiving the application.
If the relevant authority fails to provide a determination within the time frame prescribed by the regulations, the applicant may issue a Deemed Planning Consent Notice that states that planning consent should be granted. See ‘Deemed Planning Consent Notice'.
[Planning, Development and Infrastructure Act 2016 (SA), s 125(2)].
Building Consent - Complying Building Work [s 118]
Complying building work (as a form of accepted development) essentially provides for a tick-box assessment of proposed building work against a set of criteria. Building consent will be granted if the proposal is listed as complying in either the Building Rules or Schedule 7 of the Planning, Development and Infrastructure (General) Regulations 2017 [see also Planning, Development and Infrastructure Act 2016 (SA) s 118(1)] and is in a zone where complying building work applies and meets all the required standards.
If the Planning, Development and Infrastructure (General) Regulations 2017 (SA) provide that a form of building work complies with the Building Rules, then that building work must be granted building consent [see s 118(1) Planning, Development and Infrastructure Act 2016 (SA)].
The regulations set out the types of building work (and some conditions) that may meet the criteria to be granted building consent under s 118 of the Act [see Schedule 7 of Planning, Development and Infrastructure (General) Regulations 2017].
The types of building works that may qualify for building consent under s 118 of the Act include:
The presumption of building consent does not apply to building work that affects a State heritage place, or building work that is excluded by the provisions in Schedule 7 [see r 28(2) Planning, Development and Infrastructure (General) Regulations 2017 (SA)].
Where there is inconsistency between the Building Rules and the Planning Rules in relation to a State or local heritage place, the Planning Rules prevail and the Building Rules do not apply to the extent of the inconsistency [s 118(6) of the Act]. However, the relevant authority must ensure, as much as is practicable, that the building standards reached are as good as can be reasonably achieved in the circumstances [s 118(6(b)].
At completion of the building works, a Certificate of Compliance certified by a building certifier must be provided to the relevant authority. The Certificate of Compliance is considered sufficient proof that the building work complies with the Building Rules [Planning, Development and Infrastructure Act 2016 (SA) s 118(8)].
3. Code assessed development
Code Assessed development refers to development that is assessed on its own merit, having regard to the objectives of the planning policies and the provisions of the Planning and Design Code [s 105(a), Planning Development and Infrastructure Act 2016 (SA)]
Once assessed against the Planning and Design Code, Code Assessed Development will be sub-categorised as either:
or
Deemed-to-satisfy development [s 105(a), s 106]
A ‘deemed-to-satisfy- development’ replaces the old development category of Complying Development under the old Development Act 1993 (SA).
For example, standard developments like a detached house in a residential zone will be fast tracked through the approval process as a ‘deemed-to-satisfy’ development.
Deemed-to-satisfy development applications are assessed against the provisions of the Planning and Design Code by an Accredited Professional or an Assessment Manager.
There are no public notification requirements for Deemed-to-satisfy developments.
Performance Assessed Development [s 105(b); s 107]
Performance Assessed Development applications are assessed against the provisions of the Planning and Design Code. While standard developments are fast tracked through the ‘deemed-to-satisfy’ assessment process, more complex development (i.e. a multi-storey building) will be subject to more in depth performance based assessment.
Performance Assessed Development applications are assessed by an Assessment Manager, Assessment Panel, or the State Planning Commission.
There are public notification requirements for Performance Assessed Development applications. Unless an exemption is provided under the Planning and Design Code or Practice Direction from the Minister, notification of performance assessed development applications must be given to adjacent land owners. A notice or sign outlining the development must be displayed on the land.
Under the Planning, Development and Infrastructure (General) Regulations 2017, the assessing authority must advise the applicant within 25 business days after receiving the application [r 53(b)]. The 25 business days is comprised of 5 days to verify the assessment, with 20 days to undertake the assessment).
The time frame for assessment of the performance assessed development application is extended where:
If the relevant authority fails to provide a determination within the time frame prescribed by the regulations, the applicant may issue a Deemed Planning Consent Notice that states that planning consent should be granted. See ‘Deemed Planning Consent Notice'.
[s 125(2) Planning, Development and Infrastructure Act 2016 (SA)].
4. Impact assessed development [s 108]
Development falls within the category of impact assessed development if:
[see s 108 Planning, Development and Infrastructure Act 2016 (SA)].
Examples of impact assessed development includes broad scale or major developments like major infrastructure or industrial scale developments(i.e. a new port, a metal foundry, a marina of more than 100 berths, a wind farm in marine waters etc.)
Impact assessed development are subject to Environmental Impact Statement, and full analysis of the environmental, economic, social impact is required, along with assessment of how those impacts will ne managed by the developer.
Impact assessed development includes restricted development defined under the Planning and Design Code. Whether or not a development is to be assessed as a restricted development is determined by the State Planning Commission [s 110(1) Planning, Development and Infrastructure Act 2016 (SA)].
Impact Assessed - Restricted Development [s 110]
Restricted developments are assessed by the State Planning Commission (or a delegated authority) against the provision of Practice Directions (issued by the State Planning Commission) and the Planning and Design Code. The State Planning Commission is not bound by the provision of the Code in making an assessment of restricted development but may be guided by the provisions of the Code.
Examples of restricted development include a shop in a residential zone, or a winery in a water protection area. Public notification of restricted development applications must be:
[see reg 47, Planning Development and Infrastructure (General) Regulations 2017 (SA) and s 110(2)(a), Planning, Development and Infrastructure Act 2016 (SA)].
An person may make submissions to the State Planning Commission in relation to the granting or refusal of planning consent for a restricted development. Submissions to the SPC must:
The ordinary course of postage will be taken to be 4 business days from the day on which the notice is sent [reg 50(2), Planning Development and Infrastructure (General) Regulations 2017 (SA)].
A person who makes a submission to the State Planning Commission within the notification time-frame will have a ‘third party’ right of appeal if they are unhappy with the decision. See 'Appeals' generally.
Under the new Planning, Development and Infrastructure Act 2016 (SA) if an authority fails to make a decision on a development application within the timeframe prescribed in the regulations, the applicant may exercise the option of issuing a Deemed Planning Consent Notice.
The Deemed Planning Consent Notice does not apply to Impact Assessed Development where the relevant authority is the Minister for Planning.
[see s 125 Planning Development and Infrastructure Act 2016 (SA) and reg 54(1) Planning Development and Infrastructure (General) Regulations 2017].
Deemed planning consent may be triggered if:
If the authority considers that the application for planning consent should be refused, the authority has one month to apply to the Court for an order quashing the deemed consent.
A Deemed Consent Notice can be given to the relevant authority by:
[see reg 54 Planning, Development and Infrastructure (General) Regulations 2017].
The Deemed consent notice is available on the PlanSA-Deemed consent notice webpage (opens new window).
Under the new Planning, Development and Infrastructure Act 2016 (SA) the SA Government has introduced several Environment and Food Production Areas (EFPAs) [s 7 Planning, Development and Infrastructure Act 2016 (SA)]. These areas were introduced on 1 April 20171
The purpose of the EFPAs is to contain urban sprawl and limit future residential sub-divisions and developments in areas that have been identified as being vital food and agricultural land areas.
Under the Planning, Development and Infrastructure Act 2016 (SA), EFPAs have been introduced to:
Given that EFPAs exist to protect areas of rural, landscape, environmental or food production significance, the State Planning Commission may only vary a designated EFPAs if the SPC is satisfied that:
There are two types of areas that are captured under the EFPA:
The regulations around development on designated EFPAs land depends are different depending on what type of area it is. A map of the current designated Environment and Food Production Areas (EFPAs) is available on the PlanSA - Environmental Food Production Areas webpage (opens new window).
Rural Living Areas within EFPAs
If you are a landowner on land that is zoned as Rural Living within an EFPA area, the introduction of the EFPA will impact on your ability to subdivide your land into residential allotments.
From 1 April 2019, land divisions creating additional residential allotments are not longer permitted within rural living zones. Any applications for land divisions to create residential allotments that were lodged before 1 April 2019 will be assessed on its own merits in accordance with previous zoning rules (in place as at 1 December 2015). As such any development applications that were lodged before 1 April 2019 and were approved under the previous zoning rules may proceed.
Land within EFPAs area that is not a Rural Living Area
Land that is within an EFPAs that is not zoned as a Rural Living area cannot be subdivided into residential allotments.
Other land divisions within Environment and Food Production Areas
The restriction on land divisions within EFPAs relates to subdivision for residential allotments. Applications for land division to create allotments that are not for residential developments can still be lodged for assessment. For approval to be granted, the application will need approval of both local Council and the State Planning Commission. There are no appeal rights or appeal process if the development application is refused by either the local council or the State Planning Commission.
Further information about development within EFPAs, including boundary realignments, can be discussed with the local Council authority or found on PlanSA website (opens new window).
New development within EFPAs
Environment and Food Production Areas (EFPAs) do not affect the development of new buildings or structures within EFPAs land. Restrictions apply only to residential subdivision. Applications for development proposals regarding new buildings and structures can still be lodge
Further information about Environmental Food Production Areas, including information on assessment pathways for land divisions in EFPAs is on the PlanSA - Environmental Food Production Areas website (opens new window).
Referrals to other authorities or agencies
Often the local council or State Planning Commission must seek the views of other agencies such as the Environment Protection Authority (EPA), or Commissioner of Highways or Coast Protection Board, before making its decision [Planning, Development and Infrastructure Act 2016 s 122 and Regulation 41 and Schedule 9, Planning, Development and Infrastructure (General) Regulations 2017].
The regulations set out that some specific applications for development consent must be referred for consultation by the relevant authority to a referral agency. The referral agency is an authority or body who is recognised as having specific interests in the development. A referral agency can ask the applicant for more documents or information before considering the application.
In some cases, these referral agencies have an effective right of veto over the development by being able to direct the relevant authority to refuse the application or by insisting on strict conditions that the relevant authority must comply with [see s 122(5), Planning, Development and Infrastructure Act 2016 (SA)].
The direction given to relevant authorities by referral agencies can be the subject of an appeal. In these matters both the referral agency and relevant authority are respondents to the appeal [s 122(8) Planning, Development and Infrastructure Act 2016 (SA)]. However there is no appeal allowed against a refusal or direction issued by the Technical Regulator for electricity infrastructure [reg 44, Planning, Development and Infrastructure (General) Regulations 2017]
Public consultation and Public Notice
The Planning, Development and Infrastructure Act 2016 (SA) and Planning and Design Code sets out the public notification process in relation to development applications. The public notification requirements under the new Act are significantly different from the public notification processes under the repealed Development Act 1993 (SA).
Following the full implementation of the new Planning, Development and Infrastructure Act 2016 (SA) in March 2021, there are 4 categories of development for the purposes of consultation and public notice. These categories are:
These categories are important because they determine if, and how information about a proposed development is made available to neighbours and other potentially interested persons. The categories of development also determine whether or not 'third party' (e.g. neighbour) appeals are possible. Any proposed changes to development policy are dealt with separately through the community engagement process – see ‘Community Engagement Charter’.
The following categories of development do not require public notification:
The following four categories of development do require public notification:
1. Code Assessed - Performance Assessed (Notification required) Development [s 107]
Performance assessed developments that require public notification must notify:
Where an Environmental Impact Statement (EIS) has been prepared, all interested persons are able to make a written submission on the development’s EIS. Information about making a written submission is available on the 'PlanSA- How to have your say' website (opens new window).
2. Impact Assessed - Restricted Development [s 110]
Restricted developments lodged under Section 110 of the Planning, Development and Infrastructure Act 2016 (SA) must notify:
All interested persons have the right to submit a representation about a restricted development application.
3. Impact Assessed (by Minister) Development [s 110]
Impact assessed (by Minister) lodged under Section 111 of the Planning, Development and Infrastructure Act must notify:
All interested persons are able to make a written submissions, and additional consultation may be undertaken.
See also 'Environment Impact Statement'.
4. Crown Development [s 130, s 131]
Crown developments lodged under Section 130 or 131 of the Planning, Development and Infrastructure Act 2016 (SA) must go on public notice if the development has a cost exceeding $10 million. Crown developments must notify:
All interested persons have the right to submit a representation about a crown development application. Information about making a written submission is available on the 'PlanSA- How to have your say' website (opens new window).
Following the public notification and consultation process, there are some instances where people are granted appeal rights under the Planning, Development and Infrastructure Act 2016 (SA).
Accepted/Code Assessed (Performance Assessed) development
An owner or occupier of a development site, or adjacent land, who can demonstrate a relevant interest in the matter, can appeal as to the nature (categorisation) of the development.
Restricted development (set out in Planning and Design Code)
A person who has submitted a representation (within the notification period) in relation to an application for Restricted development (set out in Planning and Design Code) will have a third party right of appeal if they are unhappy with the decision of the relevant authority.
Impact Assessed (Non- Restricted) Development
There is no third party appeal process for Impact Assessed (Non-restricted) development. However in accordance with the Community Engagement Charter there are avenues for community consultation about all significant development proposals of this size and complexity (i.e. major developments), and these are determined by the Minister. See also 'APPEALS' generally.
Major development is now dealt with as impact assessed development under the Planning, Development and Infrastructure Act 2016 (SA). As with any other planning consent under Part 7 Division 2 of the Act, building consent will be required under Part 7 Division 3 of the Act.
Under section 108(1)(c) the Minister can declare certain development as impact assessed development. This declaration must be published in the Gazette, and on the SA Planning Portal. The declaration made by the Minister may be made in relation to a specific development, a kind of development (either in SA generally, or in a specified part of SA) or development generally within a specified part of SA. The Minister may vary or revoke a declaration by a further notice published in the Gazette and SA Planning Portal.
For the purposes of section 111(2)(a) of the Act, a relevant authority must ensure that all relevant documentation (including the application and any accompanying documentation or information lodged by the applicant with the relevant authority under Part 7 Division 4 of the Act) is available to the Minister via the SA Planning Portal within 5 business days after the notice is published on the SA planning portal [Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 68].
Section 111 of the Act outlines procedural matters that must be followed for impact assessed development (not being restricted development) by the Minister.
Environment Impact Statement (EIS)
The State Planning Commission will determine the level of detail required in relation to an Environmental Impact Statement (EIS) after taking into account:
For the purposes of section 112 of the Act, the Commission must invite the applicant to express any view on the level of detail required in the EIS. The applicant has at least 20 business days to respond to that invitation [Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 70].
Section 113 of the Act outlines the process where an Environmental Impact Statement must be prepared for a proposed development. The EIS is prepared by either the applicant or the Minister (after consultation with the applicant first). The EIS must be prepared in accordance with the relevant State Planning Commission practice direction.
The Environmental Impact Statement (EIS) must include:
After an EIS has been prepared, the Minister:
for comment and report within the time prescribed by the regulations [see Planning Development and Infrastructure Act 2016 (SA) s 113(5)].
Copies of EIS must be available for public inspection for a period of time, and public notice must be given of the availability of copies of the EIS. The EIS must be published on the SA Planning Portal, and the Minister must invite interested persons to make written submissions within prescribed time frame (as determined by practice direction [Planning, Development and Infrastructure Act 2016 (SA) s 113(5)(b)].
The Minister also has discretion to direct an applicant to undertake other consultation in relation to the EIS. Alternatively, the Minister may undertake further consultation regarding the EIS if the Minister thinks fit.
The Minister must provide copies of all submissions to the applicant within a specified period of time.
The applicant must then prepare a written response to any matters raised by a Minister, and any authority or body specified by the Minister, as well as respond to all submissions provided to the applicant. The applicant must provide a copy of the response to the Minister [s 113(8) Planning, Development and Infrastructure Act 2016 (SA)].
The State Planning Commission must then prepare an assessment report that includes:
[ s 113(9)].
The State Planning Commission must notify any person who made a written submission (within specified time frame) of the availability of the Assessment Report. The State Planning Commission is also required by public notice, to give notice of the place or places at which copies of the Assessment Report are available for inspection and purchase. A copy of the Assessment Report must be published on the SA planning portal.
Copies of the EIS, the applicant's response, and the Assessment Report must be made available for inspection and purchase at a place determined by the Commission for a period determined by the Commission.
If a proposed development to which an EIS relates will be situated wholly or partly within the area of a council, the State Planning Commission must give a copy of the EIS, the applicant's response, and the Assessment Report to the council.
There are limited circumstances when an EIS and relevant assessment report can be amended [see s 114 of the Planning, Development and Infrastructure Act 2016 (SA)]. An amendment may include the addition, variation, substitution or deletion of material. If an EIS or Assessment Report is amended, the State Planning Commission must give notice of the place or places where the amended documents are available for inspection and purchase.
Minister's Decision
Once a decision has been made by the Minister, there is no right of appeal by any party against that decision.The Minister’s decision will only be subject to judicial review, but not merits review.
Crown Development
Where a state agency (a widely defined term which includes Government departments) proposes to undertake development, the normal development assessment scheme referred to above does not generally apply and a special 'Crown Development' procedure is activated [Planning, Development and Infrastructure Act 2016 (SA) s 131; Planning, Development and Infrastructure (General) Regulations 2017 (SA) Part 12 and Schedule 13].The relevant state agency can still determine to proceed with the assessment and approval under the general assessment scheme if they choose to [Planning, Development and Infrastructure Act 2016 (SA) s 131(3)].
Examples of the types of development covered by this section include:
All Crown Development applications must be lodged with the State Commission Assessment Panel (SCAP) for assessment. The SCAP will then prepare a report to the Minister who decides whether to approve or refuse the application. The Minister may also impose conditions or approve all or part of a development. There is no right of appeal against the Minister’s decision.
If a State agency proposes to undertake development in a partnership or joint venture (other than for the provision of public infrastructure) with a person or body that is not a State agency, then the application must be made and assessed in the same manner as a private sector application [see s 131(1)].
Section 131 of the Act does not apply to apply to any development within the Adelaide Park lands (except for minor works of a prescribed kind, or a prescribed part of the Institutional District of Adelaide). The South Australian Housing Trust is also excluded from the definition of State agency [Planning, Development and Infrastructure (General) Regulations 2017 (SA), r 105].
Further information about how major development projects are assessed is available on the PlanSA - Major projects website (opens new window).
Building Consent
Building work is broadly defined under the Planning, Development and Infrastructure Act 2016 (SA) as:
work or activity in the nature of—
(a) the construction, demolition or removal of a building (including any incidental excavation or filling of land); or
(b) any other prescribed work or activity, but does not include any work or activity that is excluded by regulation from the ambit of this definition.
[s 3]
Further information on whether particular work may be defined as building work is available from the 'PlanSA-Find out if you need approval' website (opens new window).
Generally if an inconsistency exists between the Planning Rules and the Building Rules, the Building Rules prevail and the Planning Rules do not apply to the extent of the inconsistency [s 57(3)]. However this does not apply in relation to a State heritage place or local heritage place.
The regulation of building work is contained in several parts of the Planning, Development and Infrastructure Act 2016 (SA).
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 Statement of Compliance from a licensed building work contractor, registered building work supervisor or a building certifier, may have to be attached to a notification via the SA Planning Portal. The local council can give advice on the required notification period [see Planning, Development and Infrastructure Act 2016 (SA) s 146(1); Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 93 and r 104].
The Planning, Development and Infrastructure Act 2016 (SA) empowers an authorised officer, that is, a person appointed by a council or the Minister [s 210] 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, or 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 [s 211].
A person must not occupy a building on which building work has been carried out unless a certificate of occupancy has been issued or the building is a type excluded by the regulations [Planning, Development and Infrastructure Act 2016 (SA) s 152]. The certificate will be granted by either a building certifier who approved the building plans or the local 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 [s153(1)].
The Certificate of Occupancy will be issued electronically via the PlanSA portal.The certificate may be issued by either the building certifier who approved the building plans or the local council. This will be nominated on the Decision Notification Form at development approval stage.
The requirement of a Certificate of Occupancy now extends to Class 1a buildings (houses) as categorised under the Building Code of Australia. Class 1a buildings include single detached or semi-detached houses, or one of an attached row of houses (i.e. a townhouse or terrace). The requirement to have a Certificate of Occupancy is a key change under the new system which owners, councils, certifiers and builders should be aware of [Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 103].
Class 1a developments that received building consent under the previous Development Act 1993 but are completed on or after the 19 March 2021 do not require a Certificate of Occupancy. All other classes of habitable buildings (Class 1b-9 under the Building Code of Australia) remain subject to the requirements of the Planning, Development and Infrastructure Act 2016 (SA). A Certificate of Occupancy is not required for a Class 10 building under the Building Code of Australia (such as sheds, carports or verandahs).
Activities that affect stability of land or premises
Where building work affects the stability of other land or premises, the building owner must, at least twenty business 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 notice of intention must be in the prescribed form, which is Form 1 - Initial Notice to Owner of Affected Site [see [Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 64(2a)(b) and Schedule 10A].
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 [Planning, Development and Infrastructure Act 2016 (SA) s 139 and s 148(3)].
A party wall cannot be built without the written 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 Land Services SA. 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 [Planning, Development and Infrastructure Act 2016 (SA) s 147].
A new feature of the Act is that a building owner has a right to install flashings between two buildings (including a building on an adjoining allotment). The building owner can also install the flashing so that it overlaps the boundary between the two buildings [s 148(2)].
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 [s 149(2)]. 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 [Planning, Development and Infrastructure Act 2016 (SA) s 149(3)].
Access to neighboring land for building work (general provision)
If a person reasonably requires access to neighbouring land in order to carry out building work, the person seeking access to the adjoining allotment may serve notice on the owner requesting that they be given access [Planning, Development and Infrastructure Act 2016 (SA) s 140(2)].
The notice must be in the prescribed form (Form 1- Access to Neighbouring Land) and must contain:
[Planning, Development and Infrastructure (General) Regulations 2017 (SA) reg 64A(1); Schedule 10B]
If the owner does not respond to the notice within 10 business days, or responds to the notice by refusing access or proposing alternative arrangements for access that are considered to be unreasonable, the person seeking access may apply to the Environment, Resources and Development Court (the 'ERD Court') for an authorisation to gain access [under s 140 of the Planning, Development and Infrastructure Act 2016 (SA)].
If the ERD Court considers it reasonable to do so, it can issue an authorisation permitting access on a specified basis, and on specified conditions (if any).
A person must insofar as is reasonably practicable, minimise disturbance to the land, and is liable to pay reasonable compensation on account of any loss or damage caused by doing so [ss 140(9)-(10].
Section 140 of the Act does not limit the ability of a person to gain access to land under an agreement with the owner or occupier of the land, or the operation of section 139 outlined above.
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 [Planning, Development and Infrastructure Act 2016 (SA) s 158]. This section is designed to stop relevant authorities 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 relevant authority are joined as defendants to the action.
The time limit to take action for defective building work is 10 years, after which no action for damages for economic loss or for the cost of rectifying the defective work may be taken. The 10 year period runs from the completion of the building work [Planning, Development and Infrastructure Act 2016 (SA) s 159(1)].
The High Court case of Bryan v Maloney [1995] HCA 17 has also held that subsequent owners may be able to take action against the builder where the work is defective. The reasons for deciding (ratio decidendi) the case in Bryan v Maloney was limited to residential dwellings and not commercial buildings; see Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 .
In Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 the case of Bryan v Maloney was distinguished on its facts. The High Court held that the builder (Brookfield) of a strata-titled apartment complex did not owe a duty of care to the Owners Corporation to avoid causing it economic loss resulting from latent defects in the common property. This case discussed the notion of vulnerability of the plaintiff, and not just the proximity of the plaintiff to the defendant [at 22-24].
"The continuing authority of Bryan v Maloney should be confined to a category of case in which the building is a dwelling house and in which the subsequent owner can be shown by evidence to fall within a class of persons incapable of protecting themselves from the consequences of the builder's want of reasonable care." (Gageler J at [185])
Both the Building Work Contractors Act 1995 (SA) and Australian Consumer Law could also be relevant to disputes about defective building work. Time limits under these laws are different. Please refer to Building Work Contracts for more information.
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 [Planning, Development and Infrastructure Act 2016 (SA) s 155]. An order must be given in writing unless the authorised officer considers that urgent action is required, in which case it may be given orally (but must be confirmed in writing by 5:00pm on the next business 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 [ss 155(5-6)]. Similar provisions apply to the issue of fire safety notice [Planning, Development and Infrastructure Act 2016 (SA) s 157].
The Planning, Development and Infrastructure Act 2016 (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 [Planning, Development and Infrastructure Act 2016 (SA) s 135(2)(d)].
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 [Planning, Development and Infrastructure Act 2016 (SA) s 205(1)(d)(ii)]. 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 impact assessed development (restricted) development ( as set out in the Planning and Design Code) can be appealed by third parties(representors). 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. [Planning, Development and Infrastructure Act 2016 (SA) s 204].
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 [Planning, Development and Infrastructure Act 2016 (SA) s 201(d) and Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 47].
A third party (a person other than an applicant or a relevant authority) who makes a written representation on a proposed impact assessed (restricted) 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 [ see s 110(2)(a)(iv)]. Notice must be given to the public generally, including by notice placed on the relevant land. A notice to the public generally must also be given by publishing a notice on the SA Planning Portal [Planning, Development and Infrastructure (General) Regulations 2017 (SA) r 47(8)].
A response to a representation must be made by the applicant within 15 business days after the relevant material is forwarded to the applicant, or within such longer period as the relevant authority may allow [r 51(1)]
An appeal by a third party must be commenced within 15 business days after the date of the decision in the application. It may take the relevant authority 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.[s 110(7)]. 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 [s 110(8)].
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. [s 110(9)]. 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.
Under the Act, the ERD Court may allow parties to participate in a hearing by means of telephone or video link if the circumstances are appropriate [Planning, Development and Infrastructure Act 2016 (SA) Schedule 6 Cl 18].
If it appears that a relevant authority has made a mistake in categorising the development ( eg. accepted development instead of code assessed development development) a person who is an owner or occupier of land on or adjoining the site of the proposed development can institute proceedings in the Environment Resources and Development Court to have the issue of categorisation determined [s 202(1)(g)]. Such proceedings must be instituted within two months after the landowner or occupier receives notice of the council’s decision on the proposed development. [s 204(1)]. The court has discretion to extend this time limit in special circumstances. If successful, the process of development assessment would need to be started again, with the appropriate level of public notification undertaken where necessary.
Sections 212 to 214 of the Planning, Development and Infrastructure Act 2016 (SA) set out the process for seeking a legal remedy through Civil enforcement.
Civil enforcement is legal action that can be taken by any person in relation to an alleged or anticipated breach of the Planning, Development and Infrastructure Act 2016 (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 relevant authority's decision-making process or any mistakes made.
Section 214(1) of the Act provides that "Any person may apply to the Court for an order to remedy or restrain a breach of this Act or the repealed Act". The types of remedies that can be sought from the court include: injunctions, declarations and compensation (damages). The procedure for bringing section 214 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 [s 214(19)].
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 relevant authority fails to properly advertise a development application). A typical outcome of judicial review would be a court order that the relevant authority 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.
Under section 206 of the Act, 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:
[see Planning, Development and Infrastructure Act 2016 (SA) s 202(1)(f)].
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 [s 206(3)].
The ERD Court has criminal enforcement powers by virtue of the offence provisions in the Planning, Development and Infrastructure Act 2016 (SA). All offences are dealt with as summary offences [s 218]. Prosecutions for offences under the Act 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 [s 219].
Fines which can be imposed by the court are significant. For example, a person who is convicted of undertaking development without appropriate authorisation may be fined up to $120 000 [s 215(2)]. An additional penalty can also be imposed up to the estimated amount of economic benefit that has or would be obtained in contravention of the Act [s 229]. The recovery of the economic benefit that is paid to the State Planning Commission in accordance with s 229(1) must be paid into the Planning and Development Fund. 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, a person who fails to comply with court orders to remove illegal development can be convicted of contempt of court.
Further prescribed offences by a body corporate (which includes offences by a director and chief executive officer) are outlined in section 220 of the Act. The maximum penalties for offences committed by a body corporate are 5 times higher than would otherwise be the case [s 221]. Furthermore, the state of mind of an employee, agent or officer of a body corporate who is acting in the course of their duties when committing the offence will be imputed to the body corporate for the purpose of offences under the Act [s 226]. As part of the SA planning system legislative reform, corporate multiplier penalties and directorial liability have been enacted to target breaches of the planning system. These penalties are intended to be more significant than under previous legislation, where cost penalties were previously being absorbed into the ‘costs of doing business.
An appeal from a decision or order of the Environment, Resources and Development Court lies to a single judge of the Supreme Court in the following cases [Environment, Resources and Development Court Act 1993 (SA) s 30]:
In all other cases the appeal is to the Court of Appeal [s 30(1)(e)].
Appeals can be made on matters of law as of right, while the Court's permission to appeal is required on matters of fact [s 30(2)].
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 or Court of Appeal. 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 and the Court of Appeal are not "user-friendly" jurisdictions that encourage parties to represent themselves. It is also riskier in relation to awards of legal costs against unsuccessful parties. This is discussed in the following topic Costs.
Commercial competitive interest
Section 208 of the Planning, Development and Infrastructure Act 2016 (SA) outlines when a commercial competitive interest in any relevant proceedings must be disclosed (which includes proceedings for judicial review). A person who fails to make a disclosure as required by s 208 commits an offence, with a maximum penalty of $20,000.
Section 209 of the Planning, Development and Infrastructure Act 2016 (SA) creates a right of action in certain circumstances to recover loss (including economic loss) where the sole or predominant purpose of pursuing proceedings was to delay or prevent the development in order to obtain commercial benefit.
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 of the opinion that the proceedings are frivolous or vexatious, or the proceedings have been instituted for delay or obstruction [Environment, Resources and Development Court Act 1993 (SA) s 17(4), (4a)].
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. Current court fees can be found on the Courts Administration Authority website.
Compulsory acquisition of land is covered by the Land Acquisition Act 1969 (SA). Under this Act an authority, such as a local council or the Department of Infrastructure and Transport, 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]. A notice of acquisition does not bind the authority to complete the acquisition of land. The authority may decide not to proceed with the acquisition.
An owner who has received a notice of intention to acquire land must, within fourteen (14) days of receiving the notice, notify the relevant authority of any other person, who to the owner’s knowledge, has an interest in the land, and the nature of the interest [Land Acquisition Act 1969 s 10A). A person who, without reasonable excuse, fails to notify the authority of another person’s interest in the land may be guilty of an offence [Land Acquisition Act 1969 s 10A(2)].
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. The authority may provide information by way of letter, or by making plans, relevant models or other specifications in relation to the land acquisition available [s 11(3)].
Within thirty (30) 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:
In addition, a person can request that the authority not acquire the land on the grounds that the acquisition and any undertaking:
See Land Acquisition Act 1969 (SA) s 12.
Within fourteen (14) 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 seven (7) days of being served with the authority's decision to refuse [see s 12A(2)].
SACAT must complete the appeal proceedings on a review of the authority's decision within twenty-one (21) days of the application being made [see Land Acquisition Act 1969 (SA) s 12A(3)].
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:
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 Acquisition 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. If the value of the land and the amount of compensation is unable to be determined, the Authority must, at the request of the person affected, convene a valuers conference [Land Acquisition Act 1969 (SA) s 23(7)]. The valuers conference is a meeting between valuers who have made separate valuations of the land, to determine a valuation of the land that is acceptable to both valuers.
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 either the authority or anyone affected by the notice can apply to the General Division of the Supreme Court to resolve the matter.
Both the authority and the land owner must negotiate in good faith in relation to the compensation payable for the acquisition of land. If the parties fail to negotiate in good faith, the court may take this into account when awarding costs [see Land Acquisition Act 1969 (SA) s 23(1) and s 36(b)(iii)].
A person to whom an offer of compensation is made must respond to the offer in writing within six (6) months from the date of the offer of compensation [see Land Acquisition Act 1969 (SA) s 23AB]. A person may apply for a longer period of time in which to respond to the offer of compensation.
In the event that an amount of compensation does not exceed $50 000, the payment of compensation may be made directly to the land owner in a manner determined by the Authority, rather than being paid into the Supreme Court (see section 26A of the Land Acquisition Act 1969 (SA)).
The authority may also make a payment (up to the sum of $10,000) to the land owner for payment toward professional costs relating to the acquisition of the land, including legal costs, and valuation costs [Land Acquisition Act 1969 (SA) s 26B].
Replacement Land
If the authority has acquired land under the provisions of the Land Acquisition Act 1969 (SA) and the person who was the owner of the acquired land has purchased other land to replace the acquired land (within 24 months of the land acquisition (principal place of residence) or 12 months in any other case) the authority may pay transfer costs in relation to the purchase of the replacement land (i.e. stamp duty, transfer registration fees etc.) [see Land Acquisition Act 1969 (SA) s 26D(2)]. An application for payment of the transfer costs in relation to the replacement land must be made within 24 months of the land acquisition by the authority [s 26D(3)(b)], and the replacement land must be generally similar in nature to the acquired land and purchased in the same ownership structure as the acquired land [see Land Acquisition Act 1969 (SA)s 26D(4) and Land Acquisition Regulations 2019 (SA) r 15].
Residential Tenants
After a notice of intention to acquire land is given to a person who is a residential tenant of the land, but before the land is acquired (or the authority takes possession of the land), the authority may pay the residential tenant a sum for relocation costs (up to the amount of $10,000) [Land Acquisition Act 1969 (SA) s 26C(1)]. If the residential tenant accepts a payment toward relocation costs they will not be eligible for further compensation [s 26C(2)].
Authorities can come onto any land temporarily without having to acquire the land. Authorities may temporarily occupy land for purposes authorised by law and may:
[see Land Acquisition Act 1969 (SA) s 28].
The authority must give seven (7) days written notice and can then come onto the land and commence work.
Land that can be occupied by the authority through temporary occupation includes land that is:
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 General Division of the Supreme Court is the court with jurisdiction to hear disputes under this Act [see Land Acquisition Act 1969 (SA) s 29].
Environmental Law Fact Sheets, Environmental Defenders Office (SA) Inc.
Topics covered include Development Assessment, Appeals and Civil Enforcement, ERD Court procedures, Freedom of Information etc. These are available online at the Environmental Defenders Office website.
SA.gov.au (Housing , property and land - building and development)
The South Australian Government website for planning (PlanSA) has information on the planning system including development categories, assessment processes, major developments, Crown developments, the Planning and Design Code and development policy amendments.
The current version of the Planning and Design Code can be accessed on the PlanSA - Planning and Design Code webpage.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
.png)
.jpg)
.jpg)
.jpg)
Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
.png)
.png)
