Public notification of residential flat buildings

On 15 August 2019 the Development (Public Notification) Variation Regulations 2019 were gazetted with immediate operation.

The amendments

The amendments, while concise in form (as set out in full below), nevertheless have a significant impact in terms of public notification for developments involving multiple residential flat buildings.

Clause 18(a) – Residential Flat Buildings

Previously, clause 18(a) of Schedule 9 assigned as category 2 “a building of 2 storeys comprising dwellings”.

This clause has been the subject of scrutiny in the ERD Court in two decisions of Judge Costello (Cheesman v Walkerville [2012] SAERDC 59; and Lewis v Campbelltown [2018] SAERDC 2)

The outcome of those judgments was that clause 18(a) only applies to a single building, not multiple buildings, meaning a single residential flat building was category 2, whereas multiple residential flat buildings would default to category 3. This, it was found by the Court, was consistent with the legislative intent to differentiate between the singular “building”, and plural “buildings” used elsewhere in the Schedule. It was also consistent with a conservative, rather than liberal, interpretation to legislation in circumstances where the rights of third parties were sought to be curtailed.

By amending the wording to be “1 or more buildings”, the effect of these decisions has been reversed, such that a proposal for multiple two-storey residential flat buildings is now assigned by the Regulations to category 2.

Clause 19 – Land adjacent to land in a different zone

Clause 6 of Schedule 9 applies to make development of certain types in certain zones category 1. However in situations where the subject site is adjacent land to land in a different zone, the development is category 2. Previously, clause 18(c) designated building work as category 2, whereas clause 19 designated a change in land use category 2 in those situations. These two clauses have now been consolidated in the new clause 19.