South Australian Consolidated Acts South Australian Consolidated Acts38—Public notice and consultation
(1) Subject to this
section, there will be 4 categories of development for the purposes of this
section—
(a)
Category 1 development; and
(ab)
Category 2A development; and
(b)
Category 2 development; and
(c)
Category 3 development.
(2) Subject to
subsection (2a), the following provisions apply in relation to the
assignment of developments to these categories:
(a) the
regulations or a Development Plan may assign a form of development to
Category 1 or to Category 2 and if a particular form of development
is assigned to a category by both the regulations and a
Development Plan—
(i)
if the regulations provide that an assignment by a
Development Plan may prevail—the assignment provided by the
Development Plan will, to the extent of any inconsistency, prevail (subject to
the operation of paragraph (b)); but
(ii)
in any other case—the assignment provided by the
regulations will, to the extent of any inconsistency, prevail;
(b) the
regulations may assign a form of development to Category 2A and this will
prevail to the extent of any assignment provided by a Development Plan under
paragraph (a);
(c) any
development that is not assigned to a category under paragraph (a) or (b)
will be taken to be a Category 3 development for the purposes of this
section.
(2a) The assignment of
a form of development to Category 1 under subsection (2)(a) cannot extend
to a particular development if that development involves, or is for the
purposes of, a prescribed activity of environmental significance as defined by
the Environment Protection Act 1993 .
(2c) For the purposes
of subsection (2)(b), building work will be taken to be along a boundary
if there is no set-back or separation from that boundary.
(3) Where a person
applies for a consent in respect of the Development Plan for a
Category 1 development—
(a) the
relevant authority must not, on its own initiative, seek the views of the
owners or occupiers of adjacent or other land in relation to the granting or
refusal of development plan consent; and
(b) the
following provisions of this section do not apply.
(3a) Where a person
applies for a consent in respect of the Development Plan for a
Category 2A development—
(a) the
relevant authority must—
(i)
subject to any exclusion or qualification prescribed by
the regulations—give an owner or occupier of each piece of adjoining
land; and
(ii)
give any other person of a prescribed class,
notice of the application; and
(b) the
relevant authority must—
(i)
give consideration to any representations in writing made
in accordance with the regulations by a person who is entitled to be given a
notice under paragraph (a); and
(ii)
forward to the applicant a copy of any representations
that the relevant authority must consider under subparagraph (i) and
allow the applicant an opportunity to respond, in writing, to those
representations within the period prescribed by the regulations; and
(c) if a
representation is received under paragraph (b) within the prescribed
number of days, the relevant authority may, in its absolute discretion, allow
the person who made the representation to appear personally or by
representative before it to be heard in support of the representation.
(4) Where a person
applies for a consent in respect of the Development Plan for a Category 2
development, notice of the application must be given, in accordance with the
regulations, to—
(a) an
owner or occupier of each piece of adjacent land; and
(b) any
other person of a prescribed class.
(5) Where a person
applies for a development assessment of a Category 3 development, notice of
the application must be given, in accordance with the regulations, to—
(a) the
persons referred to in subsection (4); and
(b) any
other owner or occupier of land which, according to the determination of the
relevant authority, would be directly affected to a significant degree by the
development if it were to proceed; and
(c) the
public generally.
(6) Except as
otherwise provided by the regulations, the subject matter of—
(a) any
notice required under this section; or
(b) any
representations under this section; or
(c) any
appeal against a decision on a Category 3 development by a person entitled to
be given notice of the decision under subsection (12),
must be limited to the following:
(d) what
should be the decision of the relevant authority as to
development plan consent;
(e) in a
case where a prescribed body is empowered to direct that the application be
refused, or that conditions be imposed in relation to the
development—what should be the decision of the prescribed body in
response to the application.
(7) Subject to
subsection (17), where notice of an application for consent in respect of
a Category 2 or Category 3 development has been given under this section, any
person who desires to do so may, in accordance with the regulations, make
representations in writing to the relevant authority in relation to the
granting or refusal of consent.
(8) The
relevant authority to which the application is made must forward to the
applicant a copy of the representations made and allow the applicant an
opportunity to respond, in writing, to those representations.
(9) The response
referred to in subsection (8) must be made within the prescribed number
of days after the relevant material is forwarded to the applicant.
(10) In addition to
the requirements of subsections (7), (8) and (9)—
(a) in
the case of a Category 2 development—the relevant authority may, in its
absolute discretion, allow a person who made a representation to appear
personally or by representative before it to be heard in support of the
representation; and
(b) in
the case of a Category 3 development—the relevant authority must allow a
person who made a representation and who, as part of that representation,
indicated an interest in appearing before the authority, a reasonable
opportunity to appear personally or by representative before it to be heard in
support of the representation.
(11) If a person
appears before the relevant authority under subsection (10), the
relevant authority must also allow the applicant a reasonable opportunity, on
request, to appear personally or by representative before it in order to
respond to any relevant matter.
(12) Where
representations have been made under this section, the relevant authority
must—
(a) give
to each person who made a representation notice of its decision on the
application and of the date of the decision and, in the case of a Category 3
development, of the person's appeal rights under this Act; and
(b) in
the case of a Category 3 development—give notice to the Court—
(i)
of its decision on the application and of the date of the
decision; and
(ii)
of the names and addresses of persons who made
representations to the relevant authority under this section.
(13) A notice under
subsection (12) must be given within five business days from the date of
the decision on the application.
(14) An appeal against
a decision on a Category 3 development by a person who is entitled to be given
notice of the decision under subsection (12) must be commenced within
15 business days after the date of the decision.
(15) If an appeal is
lodged against a decision on a Category 3 development by a person who is
entitled to be given notice of the decision under subsection (12)—
(a) the
applicant for the relevant development authorisation must be notified by
the Court of the appeal and will be a party to the appeal; and
(b) in a
case where the decision of a prescribed body in response to the application
for the development authorisation could be a subject matter of such an
appeal—the prescribed body will be a party to the appeal.
(16) A decision of a
relevant authority in respect of a Category 3 development in respect of which
representations have been made under this section does not operate—
(a)
until the time within which any person who made any such representation may
appeal against a decision to grant the development authorisation has expired;
or
(b)
where an appeal is commenced—
(i)
until the appeal is dismissed, struck out or withdrawn;
or
(ii)
until the questions raised by the appeal have been
finally determined (other than any question as to costs).
(17) Where a
relevant authority is acting under this section in relation to a Category 2A
or Category 2 development, a representation made by a person who is not
entitled to be given notice of the relevant application under this section is
not required to be taken into account under this section and will not have
effect for any relevant purpose under this section.
(18) In addition, a
representation that is not made in accordance with any requirement prescribed
by the regulations for the purposes of this section is not required to be
taken into account under this section and will not have effect for any
relevant purpose under this section (including, in the case of a Category 3
development, in connection with the operation of subsection (12)).
Subdivision 3—Procedural issues