The Development Act 1993 (SA) sets out three categories of development for the purposes of consultation and public notice [s 38(1)]. These categories are important because they determine whether and how information about a proposed development is made available to neighbours and other potentially interested persons. The categorisation of development also determines whether or not 'third party' (eg. neighbour) appeals are possible. The Development Plan or the Development Regulations 2008 (SA) can assign a form of development to Category l, Category 2 or Category 2A. Anything not assigned to Categories 1, 2 or 2A is regarded as Category 3 [Development Act 1993 s 38(2)( a ) & (b)]. Lists of Category 1 and 2 developments are contained in Schedule 9 Development Regulations 2008.
Category 1 developments might be:
- any development listed as a complying development in the Development Plan
Because Category 1 developments are usually the least controversial, no public notice of the development applications is required to be given and no formal consultation with neighbours or other interested parties is undertaken. If the development is approved, there are no 'third party' (eg. neighbour) appeals allowed against that decision. In practice, some councils do notify neighbours of Category 1 developments out of courtesy. However, they are not required to do so and even if they do, no appeal rights exist.
Category 2 and 2A developments:
In Category 2 and 2A development applications, a notice describing the development, identifying the land and stating whether or not it is a non-complying development must be given by the relevant authority to the owner and occupiers of adjacent land [Development Act 1993 (SA) s 38( 3a ) and (4)]. Adjacent land includes land abutting as well as land which is no more than 60 metres away and separated only by a road, watercourse or reserve [Development Act 1993 (SA) s 4]. Persons who receive notice of Category 2 and 2A developments are entitled to make a written representation and may (at the discretion of the relevant authority) also make a verbal representation either for or against the development [Development Act 1993 (SA) s 38 (3a ) and (10)]. There are no third party appeal rights.
In Category 3 development applications, the notice must be given to adjacent owners and occupiers as well as those considered by the relevant authority to be significantly affected by the proposed development. Also, the general public must be notified by publication of a notice in a local or state-wide newspaper [Development Act 1993 (SA) s 38(5)]. The notice or newspaper advertisement must state where copies of the development application may be inspected and also the date by which representations must be lodged [Development Regulations 2008 (SA) reg 33(1)].
After a notice of a Category 2, 2A or 3 development application is published or it has been given to a person, any representation must be lodged with the relevant authority within ten business days. Late representations do not have to be considered by the relevant authority in making its decision. Also, anyone lodging a late representation on a Category 3 development will not be entitled to appeal without getting special permission from the Court. After the close of representations, the applicant has another 10 days to respond to the issues raised, although this time limit can be extended by the relevant authority.
When making a representation, it is generally advisable to limit the issues raised to 'planning' issues. Remember that copies of all representations are sent to the applicant for response. To avoid the possibility of defamation proceedings (which has happened in other States and has been threatened in South Australia), it is safest to stick to issues such as environmental impact, amenity, traffic etc. rather than the identity or character of the applicant.
There is no right to appeal in the case of Category 2 and 2A developments. In the case of Category 3 development applications the relevant authority must notify those making the representations within five business days of its decision and of their right to appeal. Any appeal must be commenced within fifteen business days of the date of the decision. If an appeal is lodged the court must notify the applicant who becomes a party to the appeal. The decision of a relevant authority does not become operative until the appeal is finally determined.
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