South Australian Consolidated Acts South Australian Consolidated Acts35—Special provisions relating to assessment against Development Plan
(1) If a proposed
development is of a kind described as a complying development under the
regulations or the relevant Development Plan, the development must be granted
a development plan consent (subject to such conditions or exceptions as may be
prescribed by the regulations or the relevant Development Plan and subject to
any other provision made by this Act or applying under the regulations).
(1a) However, a
proposed development of a class prescribed for the purposes of
section 37, or required to be referred to the Commissioner of Police
under section 37A, will be taken not to be complying development (and
will not be subject to the operation of subsection (1)).
(1b) A development
that is assessed by a relevant authority as being a minor variation from
complying development may be determined by the relevant authority to be
complying development (and that determination will then have effect for the
purposes of this Act).
(1c) If a proposed
development meets all but 1 criteria necessary for the development to be
complying development, the aspect or aspects of the development that are
consistent with the development being complying development must be regarded
accordingly and the balance of the development will be assessed as merit
development.
(1d) To avoid doubt,
subsection (1c) does not prevent a relevant authority deciding not to
grant development plan consent on account of its assessment of the balance of
the development under that subsection.
(1e)
Subsection (1c) does not apply if, despite various aspects of the
development meeting any criteria for the development to be complying
development, the development, from an overall perspective, falls within the
category of non-complying development.
(2) Subject to
subsection (1), a development that is assessed by a relevant authority as
being seriously at variance with the relevant Development Plan must not be
granted consent.
(3) A development that
is of a kind described as a non-complying development under the relevant
Development Plan must not be granted a development plan consent unless—
(a)
where the relevant authority is the Development Assessment
Commission—the Minister and, if the development is to be undertaken in
the area of a council, that council, concur in the granting of the consent;
(b) in
any other case—
(i)
unless subparagraph (ii) applies—the
Development Assessment Commission;
(ii)
in prescribed circumstances—a regional development
assessment panel,
concurs in the granting of the consent.
(3a) However, the
concurrence of a council is not required under subsection (3)(a) if the
Development Assessment Commission is the relevant authority by virtue of the
operation of section 34(1)(b)(ii), (iii) or (vi)(A).
(4) If a development
is of a kind described as a non-complying development under the relevant
Development Plan, no appeal lies against—
(a) a
refusal of consent or concurrence under this Act at any stage in the process
(including in the circumstances envisaged by section 39(4) and including
without hearing (or further hearing) from the applicant); or
(b) a
condition attached to a consent or approval that is expressed to apply by
virtue of that non-compliance under the Development Plan,
except in relation to a proposed development that has, or will, become
necessary by reason of—
(c) a
change, or a proposed change, in the law regulating an existing use of land;
or
(d) an
order under Division 5 or 6 of Part 6.
(4a) To avoid doubt,
nothing in a preceding subsection prevents a relevant authority refusing at
any time to grant a development authorisation with respect to a non-complying
development.
(5) A proposed
development that does not fall into a category of development mentioned in a
preceding subsection will be merit development (and any such development must
be assessed on its merit taking into account the provisions of the relevant
Development Plan).