A logical approach to public notification for residential development

LG Leader September 2019

A recent ERD Court decision and a legislative amendment have resulted in logical changes to the way in which many common residential development applications will be processed ahead of the commencement of our new planning system next year.

The ERD Court decision is Fandi & Anor v City of Burnside [2019] SAERDC 30.  In this decision, the ERD Court stated, unequivocally, that dwelling alterations and additions are category 1 forms of development under Schedule 9 of the Development Regulations 2008 (“the Regulations”) provided that they are attached to the relevant dwelling.

This decision overcomes years of uncertainty arising from previous case law authority which gave rise to arguments that outdoor living areas, roof-top decks, balconies and other alterations and additions which do not add habitable rooms to a dwelling were not category 1 forms of development under Schedule 9 of the Regulations.

Schedule 9 of the Regulations was recently amended to clarify that more than one residential flat building of 2 or more storeys on a site is a category 2 form of development.  Until this amendment, two case law authorities from the ERD Court had interpreted Schedule 9 to mean that a proposal for a single residential flat building of 2 or more storeys was category 2 under Schedule 9 of the Regulations, but multiple residential flat buildings would trigger category 3 notification requirements.

We await the release of the draft Planning and Design Code to see whether a common sense to the processing of residential development applications will be carried over to our new planning system.

If you would like any further information or clarification about the decision in Fandi or the amended regulations, please contact us.