GUIDE TO THE ASSESSMENT OF CROWN DEVELOPMENT AND PUBLIC INFRASTRUCTURE An Integrated Planning and Development Assessment System

Transcription

1 Development Act 1993 GUIDE TO THE ASSESSMENT OF CROWN DEVELOPMENT AND PUBLIC INFRASTRUCTURE An Integrated Planning and Development Assessment System Planning SA Government of South Australia

2

3 GUIDE TO THE ASSESSMENT OF CROWN DEVELOPMENT AND PUBLIC INFRASTRUCTURE An Integrated Planning and Development Assessment System Index Number Third edition 2002 Reprint 2002 ISBN For further information please contact: Planning SA 136 North Terrace Adelaide 5000 Phone: (08) page i

4 page ii

5 TABLE OF CONTENTS Introduction Development Act applies to State agencies Who are the State Agencies Application and approvals are required What is development? Some important exemptions The Development Plan Lodgement of applications Important matters to consider when preparing applications Provision of notice to the council Assessment of the development application Crown development must conform with the Building Rules Environmental impact assessment Development to be maintained and operated in accordance with application and approval Appendix 1: Development application form page 1

6 page 2

7 Introduction On 15 January, 1994 the integrated planning and development assessment system came into effect under the Development Act,1993. The system is designed around the need for the State Government, local government and the community to plan ahead to give people undertaking development a reasonable degree of certainty and to provide the community with a clear understanding of the ground rules for development while protecting the environment. A key feature of this system is the Development Act and associated regulations, which set out the statutory steps by which the development control policies in the Development Plan are to be formulated and the way developments are to be assessed. However, it must be remembered that this is an important but small part of the planning process. The Development Act provides that development by the State Government and its agencies is expected to conform to the same policies and standards as private sector development. In order to assist council staff, consultants and those concerned about the full details, a series of guideline booklets has been prepared. This booklet, Guide to the assessment of Crown development and public infrastructure, outlines the responsibilities of State agencies and councils in order to fulfil the requirements of the Development Act and regulations and achieve the vision set out in the Planning Strategy. In particular, this booklet provides guidance as to how development by the State Government and its agencies should be prepared and lodged, the way in which the public is consulted and describes the manner in which applications will be assessed by councils, the Development Assessment Commission and the responsible Minister. page 3

8 Development act applies to state agencies State Government departments and statutory authorities are subject to the Development Act unless specific exemptions apply (see Some important exemptions on the following page). All development undertaken by these agencies needs to be approved by the Minister responsible for the Development Act (the Minister). A small number of agencies excluded from the definition of State agencies by Schedule 13 of the Regulations (for example the SA Housing Trust) will have their applications assessed in the same way as private sector applications, as these bodies operate in the same manner as private companies. When a State agency proposes to undertake development in partnership or joint venture with a person or body which is not a State agency, the application must be made in the same way as a private sector application and the private sector assessment process will apply. Such cases are not Crown development (see Guide to Development Assessment). The only exceptions to this rule are where the joint venture arrangement is to provide public infrastructure, or where the proposal is a Major Development (for explanation of the Major Development process, see the Guide to the assessment of Major Development or Projects). Who are the state agencies? The Crown approval process only applies to the State Crown. State Government activities are accordingly subject to the approval processes set out in Section 49. This provision does not apply to the Crown in the right of the Commonwealth. Federal, or Commonwealth, agencies are normally exempt from State planning approval procedures, although a Commonwealth directive to agencies requires consultation with State planning bodies. The State Crown includes Ministers and their Departments and will normally include statutory bodies subject to direct control of Ministers. Independent statutory bodies not under control of the Minister will normally be considered as private developers. The only exception to this rule relates to public infrastructure. Section 49 normally envisages that Crown procedures do not apply to joint venture or partnership arrangement between a State agency and the private sector. However, the Crown process does apply to the provision of public infrastructure, including facilities associated with power, water, waste, education, ports and so on. Where public infrastructure is being provided by a State agency, or under the auspices of a State agency, then the Crown process applies, irrespective of whether the private sector is involved or not. page 4

9 Section 49 sets out in full the definition of public infrastructure and the circumstances under which privately provided public infrastructure is subject to the Crown approval process. Section 49a also contains provisions that replicate Section 49 and establishes a process for the provision of electricity services by bodies licenced to provide electricity in South Australia. Applications and approvals are required All new development by State agencies, including extensions and some modifications to existing buildings, will require a development application to be made to the Development Assessment Commission (DAC). The agency must also send a notice containing details of the proposal to the appropriate council for comment. The same process applies to providers of public infrastructure endorsed by Crown agencies, or in the case of electricity infrastructure by bodies licenced to provide such services. DAC must then assess the application, consider any comments made by the council and then prepare a report to the Minister who can approve or refuse the application. Building work or other activity must not commence unless an approval has been issued by the Minister. Further details are set out in Lodgement of applications, Important matters to consider when preparing applications and Provision of notice to the councilas follows. What is development? The most common forms of development undertaken by State agencies are: a change in the use of land building work the division of an allotment. For further information, see the definitions development building building work construct and structure in the Development Act. The Development Act and regulations grant some exemptions from the need to gain approval before undertaking developmen both for specified forms of Crown development and, in other cases, for the wider community as set out in Some important exemptions below. *Note that particular provisions apply to State heritage places and local heritage places. page 5

10 Some important exemptions Specific exemptions for State agencies/public Infrastructure. Certain essential services do not require development approval because of the legislative obligations on many State agencies to provide services to the whole community (for example, the repair and reconstruction of roads and wharves, dredging of waterways and sand management under the auspices of the Coast Protection Board). Minor distribution works associated with power, water and sewerage are also exempt. Details are set out in schedule 14 of the regulations. Complying development The Development Act states that complying development is exempt from the need to apply for approval, provided any building work is certified by a private certifier (or by some person nominated by the Minister) as complying with the Building Rules (see Schedule 14, Clause b[i]). The list of complying development is set out in: part 1 of Schedule 4 of the Regulations in the Development Plan for the relevant council area. Acts and activities which are not development Some activities are declared to be not development, and hence do not require an application or approval (see Schedule 3 of the Regulations). Item 4 in the schedule, Sundry minor operations, will be of particular interest to State agencies. For example, in most situations repairs and maintenance to existing buildings are not considered development. *Note that Schedule 3 does not apply to State Heritage Places and Local Heritage Places. In these cases, an application and approval will be necessary. Urgent building work Section 54 allows work to be performed as a matter of urgency without prior approval to protect any person or building or to provide for accommodation for students at an educational institution. It is intended the latter provision will be used only where there has been a major fire or other incident or unexpectedly high enrolments at the beginning of a school term. Examples of urgent work could arise where a large tree falls on a building and damages the roof allowing rain to enter, or where a wall of a building becomes unstable due to supporting building elements being weakened by subsidence, fire or an explosion. page 6

11 Work to ensure continuance of essential public services would also be covered in this provision. Where urgent work is undertaken under Section 54, the DAC and the council must be notified immediately and an application for approval must be made as soon as practicable. Note that some State agency projects or developments may be subject to EIS processes under Cabinet directions even though technically they are not development under the Development Act (see the Guide to the assessment of Major Development or Projects. The Development Plan Each part of the State has a development plan which sets out the policies against which development applications are to be assessed. Normally the boundaries of a Development Plan equate to area of a council, although Development Plans apply in parts of the State outside of council areas. The Development Plan sets out a number of objectives or principles relating to economic, environmental and social matters which should be complied with. The Development Act requires these principles to be reviewed regularly. An amendment to a development plan is prepared after thorough consultation with the community and must be approved by the Minister and Governor. As all development applications will be assessed to identify whether they are at variance with the Development Plan, it is crucial that the officers in Crown agencies who are responsible for formulating development proposals or endorsing privately managed public infrastructure are fully aware of the plan s contents. Agencies should carefully consider, and comment upon, any proposed amendment to the Development Plan when agencies are consulted or become aware that such amendments are on public exhibition. Lodgement of applications Applications for the approval of development should be submitted to: Development Assessment Commission Level 5, 136 North Terrace ADELAIDE SA 5000 Phone: (08) Regulation 68 sets out the particulars that must be provided with the application. No application fees are payable on applications by Crown agencies lodged under Section 49. page 7

12 Important matters to consider when preparing applications Context of applications Basic information is required regarding the name of the State agency, contact officers and their telephone numbers and details of the proposed site of the development including Certificate of Title reference. In addition, applicants must provide the following: a description of the nature of the proposed development in sufficient detail for the scope of the intended activity to be fully understood details of the location, siting, layout and appearance of the proposed development information about potential pollution impacts, hazards or other activities which relate to the Environmental Protection Act (set out in Schedules 21 and 22). Applications should also include plans and drawings showing elevations and other site matters such as car parking and landscaping. The following points are set out for the information of officers who may not be experienced in, or fully aware of, the way in which new development applications are assessed. Appropriate details should be set out as part of the application. To assist the Commission in controllin the large number of applications they deal with, please use the standard development application form which was gazetted on 11 November Appendix 1 to this guide includes a pro-forma. Zoning In order to give a general indication of the kinds of uses envisaged in an area, the Development Plan contains maps designating certain zones for preferred uses, for example, General Industry Zone, District Commercial Zone or a Residential Zone. The maps are supported by written statements and tables in the Development Plan, which show whether various kinds of development are complying or non-complying in each zone. Emphasis should be given to locating development in zones where such development is complying or subject to merit. Although it is possible to apply for development which would be non-complying in a zone, it must be recognised that the Development Plan has declared that the particular use is not generally envisaged. page 8

13 As any proposal must be assessed against the provisions of the Development Plan, the chances of objections being raised are increased. It may be preferable to seek another location for the proposal. Amenity Amenity is defined in the Act as any quality, condition or factor that makes or contributes to making a locality or building harmonious, pleasant or enjoyable.it is a broad, but important, concept. Crown and public infrastructure developments which, either by their appearance, the activity that takes place in them, the hours of operation or the pollution which is emitted from them, cause offence, distress or disruption to others will be seen to lack amenity in the proposed location. This lessens the prospects of gaining approval.the preferred resolution would be to select a more appropriate site or to seek to minimise the impacts of the development by changes to the design of, or the conduct of daily activities in, the relevant premises. Traffic The volume and size of vehicles and hourly distribution of traffic likely to be generated by a development will be assessed. As part of the preliminary investigation, a study of these impacts by the applicant is necessary to form a view as to whether a particular site is suitable, or traffic management techniques can limit impacts on the locality. Visual impact Developments which, because of their bulk or the colour and texture of their external finishes, are out of sympathy with their surroundings may face difficulties in securing Development Plan consent. The consideration of the orientation of buildings, avoiding large blank walls and the incorporation of landscaping are ways of overcoming the visual impact issues. The relevant Development Plan will often state principles to be observed in respect to this topic. For example, trees and shrubs may need to be planted and maintained for the life of the development. Pollution impacts - air, water and noise The Development Plan sets out guidelines or standards in respect to pollution impacts. page 9

14 Applicants planning new developments will need to study the Development Plan and determine whether the proposed site is appropriate particularly where pollution impacts are likely. For example, a proposal to locate a works depot (which is likely to create dust emissions) next to a hospital is unlikely to gain ready approval. Similarly, a proposal to place a factory (in which noisy machinery is used) close to schools or housing may not be approved. Developments which may contribute to pollution of various types, hazards or other activities set out in Schedules 21 and 22 will be submitted by the Commission to the Environment Protection Authority for consideration and comment as part of the assessment process. Timing of applications It is important that applications are lodged at an early stage as part of a sound project management program. Signing contracts without development approval could lead to delays and legal difficulties. Applicants need to include obtaining development approval in their critical path planning. Open Space Contribution System Where a State agency or public infrastructure proponent is undertaking the division of land into five or more allotments the Minister may, at the time of granting approval, direct the State agency to provide local open space or a financial contribution in lieu to the Planning and Development Fund. Details are set out in Section 50(12) of the Act. Provision of notice to the council At the same time as lodging the application with the Commission, the State agency or public infrastructure proponent must forward details set out in Regulation 69 to the council for the area. Regulation 69A(2) requires that this notice be given within three business days of lodgement with DAC. The notice should have the same information as is forwarded to the Commission attached in order to assist the council to comment on the application within the two month limit. It is stressed that agencies should involve council staff in discussions very early in the planning stage of new developments. This will ensure any perceived difficulties are identified and ways found to overcome them. The approval process will usually be made smoother and less timeconsuming through such consultation. Further, active consultation is likely to encourage councils to provide their report to DAC in less time than the maximum two month period. page 10

15 In many instances it should be possible for comments to be provided by council officers under delegation (but this will vary from council to council and on the nature and scale of the development). Assessment of the development application After receiving the notice as described above, the council has two months to comment to the DAC. Such comments should be based on the policies in the Development Plan. DAC may ask the State agency to provide additional information in relation to the application - see Section 49(4). The Commission then considers the application with the comments (if any) from the council and relevant agencies whose views it has sought (ie, transport SA on traffic, the Environment Protection Agency in terms of noise or other pollution etc). Sections 49 and 49(7a) require the Commission to consult relevant state agencies in the same manner as occurs for private applications. The list of required referrals is set out in Schedule 8 of the Regulations. However, no agency has the power to direct a decision all referral reports must be considered as advice. If the council or a referral agency opposes the application, DAC officers will usually initiate discussions with the applicant to see whether alterations can be made to the proposal to meet the council s or referral agency s concerns. Public Consultation Sections 49(7d) and 49A(7d) require the DAC to seek public comment on major projects defined as those above $4m in development cost (for all stages). Notice is given in the form of a public advertisement and any person may make comment within 15 business days and has a right to be heard by DAC. The Decision DAC then prepares a report to the Minister. This must be done within three months of the date of receipt of the application. In most cases the time will be less. Time taken to seek additional information under Section 49(4) and to receive it is not included in the three months. In such cases, the time limit is only extended by the amount of time it takes for the applicant to supply the additional information. After receiving the report from DAC, the Minister may then approve (with or without conditions) or refuse the development proposed. It is likely that the Minister will delegate his or her powers to nominated officers to assess and approve some types of application. page 11

16 This reduces the time taken for decisions particularly for minor applications or where council support is obtained. Once the Minister has approved a Crown/Public Infrastructure development no further approvals or procedures under the Development Act are necessary. However, the Act provides that any approval can only be implemented in accordance with the Building Rules (see Crown development must conform with the Building Rules below). There is no right of appeal by councils or members of the public against a Ministerial decision on a Crown development application. Where DAC is of the view that an application is seriously at variance with the relevant Development Plan, or where the council opposes a development, the Minister must, if he or she approves the development, report to Parliament on the matter. This keeps the Parliament informed on adherence to Development Plans. This report is for noting by Parliament only, and does not delay the approval. Crown development must conform with the building rules The Development Act requires Crown Development proposals involving building work to be assessed and certified as complying with the Building Rules by a private certifier or by a person determined for this purpose by the Minister responsible for (see Section 49(14) and 49A(14)). The Building Rules include the Building Code of Australia (BCA). It is important for the application form to indicate who will be responsible for assessing building plans. A Project Certification Unit in Services SA has been approved by the Minister to assess plans for which Services SA is the project manager. State agencies who do not use Services SA must ensure any building plans are certified in accordance with Section 49 (14). The Services SA unit can advise on the building certification process. Section 49(14A) provides a process for certification where a proposal is not in accord with the performance requirements of the Building Code. Environmental impact assessment Crown developments which are of major social, economic and environmental importance may be declared a major project by the Minister and be required to undergo the procedures for major developments or projects set out in Sections of the Act. The attention of State agencies is drawn to the Guide to the assessment of Major Development or Projects. Where a project is declared major, the Crown/Public Infrastructure approval process no longer applies. page 12

17 Development to be maintained and operated in accordance with application and approval State agencies are required to ensure that developments that they undertake are completed in accordance with the plans and documents submitted with the application. (See Section 49(14a) and 49A(16)) However, the obligations do not stop there. It is expected that any person who has the benefit of a development will ensure it is used, maintained and operated in accordance with the approval and the plans and specifications which were lodged with the application.for example, any landscaping or plantings set out in the approved plans must be properly maintained or an offence may be committed. Applicants are advised that failure to comply with conditions of the Minister s approval, or undertaking development prior to approval, may give rise to a complaint by any person to the Environment, Resources and Development Court under Section 85 of the Act. This could mean that if the Court finds the complaint proven, the user of the development would be ordered to remedy the breach and meet the costs and expenses of the person who made the complaint. This applies not only to the initial applicant, but to successors in title. Accordingly purchases of assets disposed of by State agencies must be advised of relevant planning and building approval conditions. Available from: Planning SA Level 5, 136 North Terrace GPO Box 1815, Adelaide SA 5000 Phone (08) or Planning SA's Internet site page 13

18 APPENDIX 1 DEVELOPMENT APPLICATION FORM Please use BLOCK LETTERS and Black or Blue ink so that photocopies can be made of your application. COUNCIL: APPLICANT: Postal Address: OWNER: Postal Address: BUILDER: Postal Address: Licence No: CONTACT PERSON FOR FURTHER INFORMATION Name: Telephone: (work) (Ah) FOR OFFICE USE Development No: Previous Development No: Assessment No: Complying Application forwarded to DA Non complying Commission/Council on: Notification Cat 2 / / Notification Cat 3 Decision: Referrals/Concurrences Type: DA Commission Date: / / Planning: Building: Land Division: Decision Fees Receipt No Date required Fax: (work) (Ah) EXISTING USE: Additional: Development Approval: DESCRIPTION OF PROPOSED DEVELOPMENT: LOCATION OF PROPOSED DEVELOPMENT: House No: Lot No: Street: Town/Suburb: Section No (full/part): Hundred: Volume: Folio: Section No (full/part): Hundred: Volume: Folio: LAND DIVISION: Site Area (m 2 ) Reserve Area(m 2 ) No of existing allotments: Number of additional allotments (excluding road and reserve): Lease: YES NO BUILDING RULES CLASSIFICATION SOUGHT: If Class 5, 6, 7, 8 or 9 classification is sought, state the proposed number of employees: Present classification: Male: Female: If Class 9a classification is sought, state the number of persons for whom accommodation is provided: If Class 9b classification is sought, state the proposed number of occupants of the various spaces at the premises: DOES EITHER SCHEDULE 21 OR 22 OF THE DEVELOPMENT REGULATIONS1993 APPLY? HAS THE CONSTRUCTION INDUSTRY TRAINING FUND ACT 1993 LEVY BEEN PAID? DEVELOPMENT COST (do not include any fit - out costs):$ YES NO YES NO I acknowledge that copies of this application and supporting documentation may be provided to interested persons in accordance with the Development Regulations 1993 SIGNATURE: Dated: / / page 14