Assessing a Development Application

What is it?

One of the first steps the relevant authority must take is the task of deciding just what the proposed development is. Regulation 16  of the Development Regulations 2008 states that the relevant authority must determine the nature of development and proceed to deal with the application according to that determination.

Schedule 1 of the Development Regulations can assist in determining the nature of the proposed development.

Determining the nature of the development will then enable a planner to determine:

  • The kind of development (complying, non-complying or consideration of merit);
  • Who the relevant authority is;
  • Whether the application needs to be referred to prescribed bodies or other government agencies; and
  • Whether the application needs to be publicly notified.

See the Local Government Planners’ Kit for more information.

Development Application Minor Procedural Matters

“Variations to a development authorisation” (i.e. an approval) are enabled by Sections 39(6) and 36(7) of the Development Act, 1993 provided that the essential nature of the approved development has not changed and the original approval is still valid (i.e. typically within 12 months of the Development Plan consent or the Development Approval or 36 months if substantial works have commenced but the development has not been completed).  If the development authorisation has expired at the time the variation has been applied for, typically a new development application will be required and the revised proposal will need to be assessed as normal.

In assessing a “variation application”, Section 39(4)(b) of the Development Act, 1993 allows Councils to waive the need for documentation normally required by Schedule 5 of the Development Regulations, 2008, while Section 39(4)(c) allows Councils to waive the whole or part of the fees.  The description to a variation application should read “ Variation of development authorisation for Development Approval XXX/XXX/XXX to vary…..(insert description of the specific variation)…”

“Amendments to a current development application” (i.e. an application that has not been granted consent or approval) can be varied during the assessment process provided it does not vary the essential nature of the application (see Reg. 20(4) of the Development Regulations, 2008) and whether or not notice has to be given again to referral agencies or the public (see Reg. 20(3) of the Development Regulations, 2008).

“Time extensions” can be sought in relation to the operative time for Development Plan consent or a Development Approval by virtue of Section 40(3) of the Development Act, 1993.  By way of this section, Council has the discretion to extend the development authorisation time limit by request from the applicant

The time within which an extension is most likely to be sought is within 12 months from the Development Plan consent, however the Supreme Court in Hall v City of Burnside & Anor [2005] SASC 199 found that a request can be made after the consent has “expired”.  The Court set down several factors to take into account when considering a request to extend a consent including:

  • Any application for an extension made after the consent or approval has expired must be made within a reasonable time after the date of expiry or the date when the holder of the consent became aware of that the consent had expired;
  • Reasons why the application for extension has been made;
  • Whether others are unfairly prejudiced if the extension is granted; and
  • Whether the planning legislation has altered.

 

Who is the Relevant Authority?

The relevant authority can either be a Council, the Development Assessment Commission, or a Regional Development Assessment Panel (RDAP).

The State Heritage Authority can also be a relevant authority but only in respect of enforcement procedures for breaches of the Act, in accordance with Part 11 of the Act. It does not refer to the Governor or a Minister.

To determine who the relevant authority is for a particular Development Application, check Section 34 of the Development Act 1993.

What Kind of Development?

When a relevant authority is assessing a development application, they firstly need to determine whether the proposed development requires approval, whether it requires building consent only, or whether it requires both building and planning consent (Development Approval).

If a proposed development requires both building and planning consent, the relevant authority will need to determine whether it is complying, non–complying or consent on merit.

See the flow chart for a visual explanation of the path to determine the kind of development.



Note: for instructions on ‘Checking the Relevant Development Plan’, see ‘How do you Read a Development Plan’.
 
For more information on the types of development, see the Planning System Page .

A good rule of thumb to remember is that applications that are ‘Building Consent Only’ and ‘Complying’ undergo a regulation based assessment, whereas ‘Merit’ and ‘Non-complying’ development need to undergo a Development Plan based assessment.

Which Category?

A relevant authority will then need to decide whether the application has to be given public notification. There are three categories of public notification – Categories 1, 2 and 3.

Category 1 and Category 2 forms of development are listed in Schedule 9 of the Development Regulations 2008 but may also be listed in individual zones within Development Plans. To determine the category of development, consult Schedule 9 of the Development Regulations and the relevant Development Plan (See ‘How to Read a Development Plan’).

If a development is not listed as Category 1 or 2, it will be assigned Category 3 status.

Complying Development is always Category 1, Merit Development is either Category 1, 2 or 3 and Non-complying Development is usually Category 3 but can be Category 1 in limited circumstances.

Category 1 covers development which is exempt from public notification, and usually relates to uses that you would expect within a zone and which are not on a zone boundary where a conflict may arise.

Category 2 covers development which requires limited public notification to owners or occupiers of land adjacent to a proposal, but does not give rise to third party appeal rights to persons who lodge representations. The relevant DAP has discretion in relation to whether it will hear from Category 2 representors.

When a development is Category 3, a public notice is placed in a newspaper and individual notification direct to adjoining owners or occupiers (as well as others who in the opinion of the authority may be affected by the proposal). Any person can make a representation on the application. Persons who make representations in relation to Category 3 must be heard by the relevant Development Assessment Panel if they request it as part of their submission. A Category 3 representor has an appeal right to the ERD Court against the decision.

It is important that you get the categorisation of development accurate, as applicants or third parties have an ability to make an application to the Court, pursuant to Section 86(1)(f) of the Act, for a review of a matter in respect to either the nature of the development or a decision under Section 38 as to the public notice and consultation category.

Does the Application Need to be Referred?

To determine whether a Development Application requires referral to another agency, consult Schedule 8 of the Development Regulations 2008 .

Schedule 8 lists the kinds of applications that must be forwarded to particular referral bodies for comment before a planning consent decision is made.

Preliminary advice from Referral Agencies

Section 37AA of the Development Act, 1993 establishes a system whereby a preliminary advice agreement can be sought by proponents from referral agencies established pursuant to Schedule 8 of the Development Regulations, 2008 so as to streamline the referral process and creates greater certainty for applicants (i.e. to take into consideration preliminary advice in the design of development).  As an example, the process preferred by the CFS is as follows:

Step 1: The applicant provides the CFS with a copy of plans including all required detail to enables the preliminary advice (i.e. building materials, access arrangements, vegetation/landscaping details etc).

Step 2: The CFS visits the site and makes an assessment (at no cost at this stage) in terms of the fire risk (e.g. Medium/High/Extreme).

Step 3: The CFS produces a report and gives the plans back to the applicant (the CFS also keeps a copy).

Step 4: The applicant lodges the DA with Council where assessment occurs, Council requests the CFS fees and sends a copy of the application to the CFS for formal assessment.

Step 5: The CFS receives the application, reviews the previous assessment and preliminary advice and assuming that they match will reproduce the report and provide a copy to Council as confirmation of their comment(s).

Assessment Against the Development Plan

If a proposed development is either ‘Merit’ or ‘Non-complying’, it will need to be assessed against the relevant Development Plan.

Note: to determine whether a development is ‘Merit’ or Non-complying’, see 'What Kind of Development?’  and ‘How do you Read a Development Plan’ .

Where to Start

There are a number of key things to focus upon and take into account when approaching the assessment of a development proposal.

Firstly, there are essentially four questions that a planner should be asking when assessing an application, which are -

  • Is the proposed land use appropriate?
    For example: residential, commercial, industrial
  • Is the amenity for future occupants acceptable?
    For example: adequate light, private open space, access
  • Are the off-site amenity impacts acceptable?
    For example: overlooking, overshadowing, visual bulk, traffic
  • Will the proposal fit-in from a character point of view in its setting?
    That is: does the proposal adequately meet the objectives of the zone

Critical Factors When Assessing an Application

In order to answer the above questions, it is important to consider the following factors:

Desired Character of the Zone

  • degree of compatibility with desired future character
  • the ‘fit’ with the prevailing steetscape
  • the positioning of buildings and land use activities on the land
  • how appropriate is the development within its setting?
  • the form and ‘bulk’ or size of buildings
  • construction materials and colour schemes

Siting

  • the positioning of buildings and land use activities on the land
  • any physical features that influence the location (slope/ridge tops, waterways, vegetation etc)
  • setbacks from property boundaries
  • proximity to road boundaries
  • proximity to other buildings on the property
  • proximity to neighbours

Design and Appearance

  • the overall standard of the proposal
  • construction materials and colour schemes
  • the form and ‘bulk’ or size of buildings
  • the ‘fit’ with the prevailing steetscape
  • degree of compatibility with predominant character
  • degree of visual impact – is it obtrusive or dominant?
  • how appropriate is the development within its setting?

Land Use

  • can the proposed development be adequately serviced?
  • nature of activities and operations likely to be conducted as part of the development
  • degree of potential ‘nuisance’ impact arising from these
  • separation distances (or buffers) to nearby development
  • for retail/commercial and like developments, extent any car parking is required and will be provided
  • access to the land from surrounding roads
  • extent to which landscaping is needed and will be provided
  • any potential for site contamination – consideration is required where a change to a more sensitive land use is proposed

Specific Issues Relating to Land Use

The following is a brief overview of key issues that need to be considered for various land uses when assessing a Development Application.

Residential development

  • site and design
  • allotment size and shape
  • bulk and scale
  • overlooking and overshadowing
  • heritage and environmental issues
  • site coverage
  • character and amenity issues
  • car parking and access
  • site contamination

Shop development

  • ‘shops’ should be located in ‘Centre’ zones
  • car parking requirements
  • traffic issues
  • design issues
  • access between groups of shops
  • advertising signs
  • waste management

Office / consulting room development

  • location
  • car parking requirements
  • traffic issues
  • design issues
  • hours of operation

Industrial development

  • location
  • environmental issues (noise, pollution, waste)
  • car parking/access requirements
  • traffic issues
  • design issues
  • impact on surrounding land uses

Mixed use development

  • compatibility of proposed combination of land uses
  • noise protection and emissions
  • torage and waste collection arrangements
  • impact on surrounding land uses

This is not meant to be an exhaustive list but to provide an overall ‘snapshot’ as to the more common types of issues that may have to be addressed. It can also be used as a checklist guide for ensuring the right kind of information is provided with an application.

Demolition

The demolition (partial or total demolition) of any building or structure requires Building Rules Consent only as prescribed by Schedule 1A of the Development Regulations, 2008 provided that the demolition:

  • Is not proposed within an Historic Conservation Zone/Area;
  • Is not proposed within the area of The Corporation of the City of Adelaide;
  • Does not affect a State heritage place or a local heritage place; or
  • Is not within an area declared by the Minister.

Development applications should typically include a site plan outlining the building(s) to be demolished, the floor area of the building(s) to be demolished, any significant trees on the land, a brief description of the demolition procedure, a description of the materials to be demolished and confirmation of (a) the Construction Industry Training Fund Levy payment (required if the project value is $15,000 or more) and (b) Certificate of Building Indemnity Insurance (required if the building contract value is $12,000 or more for domestic building work and a person employs a Registered Building Work Contractor).

Cut and Fill

The assessment of cut (excavated soil) and fill is normally required when undertaken in association with another development.  There are some circumstances when cut and fill applications are lodged as development in its own right.  In these circumstances the assessment would follow the conventional process.

In most cases the question of whether cut and fill is incidental to a proposed dwelling will arise (that is, is the cut and fill of a level that would normally be associated with a dwelling or is it beyond what is considered to be “incidental”).

The reason this question arises is due to the definition of “building work” in Section 4 of the Development Act, 1993 which includes “incidental excavation or filling of land”.  The definition now also applies when determining the category of public notification which applies to specific development.

Each case needs to be reviewed in respect to situations where earthworks proposed are not incidental to the construction of a building but nonetheless constitute development in their own right. In these situations the earthworks that are not incidental would need to be minor in order for them to be Category 1 for the purposes of public notification. If Category 1 status cannot be conferred, the default Category 3 public notification will apply.

In some cases, a dwelling will be sited on land that requires a separate access track and associated cut and fill. Should the Council deem that the cut and fill is not minor the default Category 3 public notification will apply.

Retaining walls are a separate form of development that also require individual consideration and categorisation.

Change of Use

In the main, the definition of development includes:

(a) building work
(b) a change in the use of land
(c) the division of an allotment
(d) the demolition, removal, conversion, and various activities associated with heritage places and/or their setting
(e) tree damaging activities in relation to regulated trees.

The complete definition of development is located in Section 4 of the Development Act, 1993.

It is important to note that a change of use may also trigger an assessment of Building Rules Consent if the change results in a change in the building classification under the Building Code of Australia.

Fences

The determination of fences is outlined in the main in Schedule 3 of the Development Regulations, 2008. 

Generally, Council approval is required for a masonry (brick, cement etc) fence higher than 1 metre and any other kind of fence (iron, wooden etc) higher than 2.1 m as measured from the lower of the two adjoining finished ground levels.

All fences located within the Hills Face Zone, associated with a Local or State Heritage site or within a Historic Conservation Zone require development approval irrespective of their height or material. Fences with a height in excess of 1 m within 6 m of an intersection of boundary alignments on corner sites (other than where a 4 x 4 m corner cut-off has already been provided and is preserved) and swimming pool fences also require Council approval.

However, various exceptions to the above circumstances are listed for numerous types of Zones listed in some Development Plans and certain Council areas.  Brush fences also require separation distances that require review before determining whether these activities are not development.

Accordingly, the general outline above should be reading context with Schedule 3

Horse Keeping

Schedule 1 of the Development Regulations, 2008 defines horse keeping as follows:

horse keeping means the keeping or husbandry of horses where more than 1 horse is kept per 3 hectares of land used for such purposes or where hand feeding of a horse is involved;”

The Development Plan will confirm the zones in which horse keeping is specifically deemed to be “non-complying”.

It is important to seek a detailed land management property plan when assessing horse keeping activities.  The application information and the assessment process should consider the following planning issues (as a minimum):

  • Prevention of soil erosion (e.g. rotation of horses through paddocks, carrying capacity of the land)
  • Prevention of water pollution (e.g. watercourse proximity and awareness of waterlogging and pasture renovation)
  • No net increase in pest plants or animals and vermin (e.g. weed control and fertiliser programs, grain storage containers)
  • Minimisation of odour production (e.g. manure management and removal)
  • Minimisation of noise production
  • Protection of native fauna and flora
  • Maintenance of the visual landscape
  • Method of containing horses on site
  • Methods of ensuring the heath and welfare of the horses (e.g. stable area, surface materials, cross ventilation, drainage)
  • Provision of exercise areas, stables and yards.

Useful information can be found at the Horses Land and Water Community of Practice Specific link below:

http://www.horseslandwater.com/whole

Swimming Pools

All swimming pools require approval, albeit that in some circumstances Schedule 1A of the Development Regulations, 2008 enable some pools and spas to require only a Building Rules Consent.

A swimming pool, other than in a Historic Conservation Zone/Area, the Hills Face Zone, a Flood Management Zone/Area, or a River Murray Zone does not require Development Plan Consent subject to the satisfying the following criteria:

  • Ancillary to a dwelling erected on the site
  • Not being constructed, added to or altered so that any part of the pool is within 1 metre of a boundary of the allotment
  • Not being constructed, added to or altered so that any part of the pool is situated in front of any part of the building line to which it is ancillary that faces the primary street; and
  • Does not have a filtration system located—
    (i) in the case of a filtration system enclosed in a solid structure that will have a material impact on the transmission of noise—within 5 metres of a dwelling located on an adjoining allotment; or
    (ii) in any other case—within 12 metres of a dwelling located on an adjoining allotment.

Assessment criteria for spa pools are also contained in Schedule 1A of the Development Regulations, 2008.

Otherwise, swimming pools and spas require assessment on merit.
For safety reasons pools are also required to be fenced. 

Truck and Other Large Vehicles Parking on Residential Premises

Development approval is required to park a vehicle that weighs more than 3 tonne tare (3,000 kg) on a residential property (see Schedule 3 of the Development Regulations, 2008).  However, approval is not required where such vehicles are parked on commercial or industrial property or a rural property used for farming or agriculture.

Information specific to development applications that will assist the assessment process includes:

  • Site plan illustrating position of all buildings and structures on the site, position of fences and gates, location and details of mature vegetation and vehicle crossover points
  • Description of the type, make and purpose of the vehicle
  • Frequency of use (e.g. daily vehicle movements and time of use)
  • Related activities (e.g. repairs, washing, maintenance)
  • Any associated activities (e.g. storage of materials).

Assessment issues are likely to include visual impact, noise, impact of related activities, traffic congestion and off-street manoeuvrability, and potential damage to Council infrastructure.

Water Tanks

Schedule 3 of the Development Regulations, 2008 confirms that water tanks (and any supporting structure) do not require Development Approval subject to the following:

  • It is part of a roof drainage system
  • Has a total floor area not exceeding 10 m2
  • Is located wholly above ground
  • Has no part higher than 4 m above the natural surface of the ground.