South Australian Consolidated Acts South Australian Consolidated Acts36—Special provisions relating to assessment against the Building Rules
(1) If the regulations
provide that a form of building work complies with the Building Rules, any
such building work must be granted a building rules consent (subject to such
conditions or exceptions as may be prescribed by the regulations or the
Development Plan).
(2) Subject to
subsection (3), a development that is at variance with the Building Rules
must not be granted a building rules consent unless—
(a) the
variance is with the performance requirements of the Building Code and the
Building Rules Assessment Commission concurs in the granting of the consent;
or
(b) the
variance is with a part of the Building Rules other than the Building Code and
the relevant authority determines that it is appropriate to grant the consent
despite the variance on the basis that it is satisfied—
(i)
that—
(A) the provisions of the Building Rules
are inappropriate to the particular building or building work, or the proposed
building work fails to conform with the Building Rules only in minor respects;
and
(B) the variance is justifiable having
regard to the objects of the Development Plan or the performance requirements
of the Building Code and would achieve the objects of this Act as effectively,
or more effectively, than if the variance were not to be allowed; or
(ii)
in a case where the consent is being sought after the
development has occurred—that the variance is justifiable in the
circumstances of the particular case.
(2a) No appeal lies
against—
(a) a
refusal of concurrence by the Building Rules Assessment Commission under
subsection (2)(a); or
(b) a
refusal of building rules consent by a relevant authority if the Building
Rules Assessment Commission has refused its concurrence under
subsection (2)(a); or
(c) a
condition attached to a consent or approval that is expressed to apply by
virtue of a variance with the performance requirements of the Building Code.
(2b) A
relevant authority may, at the request or with the agreement of the applicant,
refer proposed building work to the Building Rules Assessment Commission for
an opinion on whether or not it complies with the performance requirements of
the Building Code.
(2c) In addition,
regulations made for purposes of this subsection may provide that
building work of a prescribed class must not be granted a building
rules consent unless the Building Rules Assessment Commission concurs in the
granting of the consent.
(3) Where an
inconsistency exists between the Building Rules and a Development Plan in
relation to a State heritage place or a local heritage place—
(a) the
Development Plan prevails and the Building Rules do not apply to the extent of
the inconsistency; but
(b) the
relevant authority must, in determining an application for
building rules consent, ensure, so far as is reasonably practicable, that
standards of building soundness, occupant safety and amenity are achieved in
respect of the development that are as good as can reasonably be achieved in
the circumstances.
(3a) A
relevant authority must seek and consider the advice of the Building Rules
Assessment Commission before imposing or agreeing to a requirement under
subsection (3) that would be at variance with the performance
requirements of the Building Code.
(4) Subject to this
Act, a relevant authority must accept that proposed building work complies
with the Building Rules to the extent that—
(a) such
compliance is certified by the provision of technical details, particulars,
plans, drawings or specifications prepared and certified in accordance with
the regulations; or
(b) such
compliance is certified by a private certifier.
(5) No act or omission
by a relevant authority in good faith in connection with the operation of
subsections (3) or (4)(a) (other than where a certificate under
subsection (4)(a) is given by a private certifier 1 ) subjects the
relevant authority to any liability.
(6) The
relevant authority may refuse to grant a consent in relation to any
development if, as a result of that development, the type or standard of
construction of a building of a particular classification would cease to
conform with the requirements of the Building Rules for a building of that
classification.
(7) If a
relevant authority decides to grant building rules consent in relation to a
development that is at variance with the Building Rules, the
relevant authority must, subject to the regulations, in giving notice of its
decision on the application for that consent, specify (in the notice or in an
accompanying document)—
(a) the
variance; and
(b) the
grounds on which the decision is being made.
Note—
1 See section 89 with respect to certificates
given by private certifiers.