24 December 2010 Issue 44
Introduction
Wind farms. External painting controls. Affordable housing. Variation applications. And all the updates to the Regulations, training opportunities and staff movements that you need to know about. Welcome to our final Briefly for 2010.
Farewells and Arrivals
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| Rebecca McAulay, Senior Associate | James Nicolson, Law Clerk |
It is with sadness that we say farewell to Rebecca McAulay who leaves us after 5 years of excellent legal service. Rebecca follows her fiancé to Perth where both have exciting opportunities waiting for them.
We also say a hearty welcome to James Nicolson. James will soon complete his Bachelor of Laws and Legal Practice at Flinders University and is due to be admitted to practice in early 2011 as a barrister and solicitor in the Supreme Court of South Australia. Since joining the Environment and Planning team as a law clerk in late 2009, James has assisted senior members of the team in their preparation of planning appeals, prosecutions and enforcement actions on behalf of local government. He has also assisted senior members in undertaking research tasks, drafting land management agreements and drafting advice regarding the Development Act 1993. James has made a valuable contribution to the Environment and Planning team in 2010 and we look forward to his promotion to solicitor upon his admission to practice in the New Year.
Training Opportunities
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With a fresh influx of elected members comes opportunities for training that can benefit the new members, returning members, and also staff. We are proud to offer the Knowledge Bank elected member education program which incorporates almost 30 separate 45-60 minute training modules ranging from Probity to Procurement, from Defamation to Development, and from Employment to Environmental Health. |
| Patricia Green, Local Government Services Coordinator |
In relation to town planning we offer The Role of Council as a Planning Authority, Development Assessment and the Planning Appeal Process, and Current Issues in Planning Policy and Law.
Each module has a low fixed cost, and six modules can be combined into a whole day package to reduce per-module costs further. We encourage rural councils to share costs by running joint training sessions.
In addition to the Knowledge Bank we also offer specialised DAP member training which is of benefit to both new and returning members.
Finally, we continue to offer those who were unable to attend our annual conference the opportunity to enjoy the benefits of any one or more of the sessions presented there:
- Planning Case Law Update presented by Gavin Leydon
- Developer Contributions presented by Felicity Niemann and Yari McCall
- Time for a Tree Change (Regulated Trees) presented by Peter Psaltis and Martha Savva
- Private Certification – the Council Perspective presented by David Billington
- Fix Your Development Plan with Best Practice Drafting presented by David Billington
For further information, please contact Patricia Green on 8210 1211 or pgreen@normans.com.au.
Council Elections and Existing Development Assessment Panel Members
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We continue to receive queries regarding the effect of the council elections on the membership of council development assessment panels (“DAPs”). DAPs are established under Section 56A of the Development Act 1993. Section 56A(3)(c) provides that members are “appointed” to the DAP. Excluding the Presiding Member, up to half of the remaining DAP members may comprise elected members to the relevant council. |
| David Billington, Senior Associate |
Section 56A(3)(e) of the Act provides that the term of office of a DAP member will be for a period, not exceeding 2 years or as determined by the council.
Section 56A(3)(h) outlines the situations in which the office of a member of the DAP will become vacant, such as by virtue of death, completion of the term of office and a failure to be reappointed, resignation, bankruptcy or insolvency, criminal conviction with a sentencing a term of imprisonment or removal from office for performance reasons outlined in Section 56A(3)(g).
Therefore, elected members of councils who are also appointed to the DAP of that council will still be a member of the DAP even if not re-elected. They will retain the DAP membership until the occurrence of one of the events detailed in Section 56A(3)(h), ordinarily, completion of their term of appointment.
For further information, please contact David Billington on 8210 1263 or dbillington@normans.com.au.
Affordable Housing
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We have recently received queries from councils regarding how the affordable housing scheme will work in practice. This is particularly relevant seeing as provisions relating to affordable housing policy are being adopted into Development Plans. Some of the issues concern: |
| Peter Psaltis, Partner |
- the appropriate approach to development assessment and the application of the Development Plan provisions dealing with affordable housing
- what actually constitutes development for the purposes of affordable housing
- the requirement for proponents of affordable housing development to have in place a legally enforcement agreement with either the relevant Minister or the Council.
While exploration of these issues is too long and complex to undertake here, we thought it important to flag this as an emerging area and to note that there are challenges to both State and local government in successfully marrying policy objectives with development assessment constraints and on-the-ground outcomes.
For further information, please contact Peter Psaltis on 8210 1297 or ppsaltis@normans.com.au.
Quinn v Regional Council of Goyder [2010] SAERDC 63 – Wind Farms
On 24 November 2010, the ERD Court handed down judgement in the first planning appeal concerning a proposed wind farm which has proceeded to hearing in South Australia.
AGL Energy Ltd sought approval for a wind farm located east of Hallett, near Mt Bryan, on land zoned Primary Production. The proposed wind farm consisted of 33 turbines, access roads, cables, wind monitoring masts, an electricity sub-station and other associated infrastructure. The turbines comprised 80 m high towers with 44 m long turbine blades, giving an overall height of 124 m.
The Council granted conditional development plan consent to the proposal, and several representors appealed against the Council’s decision. The appellants’ objection to the wind farm related principally to the potential noise impacts of the turbines, and their visual impact including the effect on users of the Heysen Trail.
AGL led uncontested evidence that the location was very good for efficient generation and supply of electricity, compared with other existing or proposed wind farms around Australia. On that basis, the Court was satisfied that the proposed wind farm would be sited in an “appropriate location” having regard to Objective 1 and PDC 1 of the Renewable Energy Facilities (REF) section of the Development Plan.
Importantly, the Court held that the REF provisions express a planning policy which “encourages” the establishment of new wind farms in such areas.
The Court then considered whether the wind farm was suitable in terms of siting, design and operation. The Court noted that the site was not in an area where the landscape qualities are “so significant” that a wind farm would not be appropriate on visual grounds. The Court indicated that, generally, it would not expect such areas to be zoned Primary Production.
The Court also observed that the policy behind the provisions of PDC 2 in the REF section of the Development Plan which deal with visual amenity “must have been set in the knowledge that a wind farm necessarily involves the establishment of very high towers, with very long blades attached to them, in visually prominent locations”. As such, some modification of the landscape “must occur” for the objectives of the REF section to be achieved.
The Court held that although the landscape would be modified by the introduction of new elements, it would retain an open, scenic, rural character as desired in the Zone.
Two acoustic engineers provided expert noise evidence, and anecdotal evidence from people living in proximity to an existing, neighbouring wind farm was given.
AGL’s acoustic engineer was satisfied, on the basis of noise modelling, that the proposed wind farm would sufficiently comply with all relevant environmental noise standards. The acoustic engineer called by the appellants did not undertake noise modelling but, instead, criticised the relevant noise guidelines and standards. The Court held that it was not its role to re-write those documents. Rather, its role generally was to apply the standards as they exist.
In dealing with the anecdotal evidence, the Court stated that the framers of the development plan “must have known” that, even in a sparsely populated rural area, there will be residents who will be able to hear the turbines, and a small percentage of those residents are likely to be annoyed by that noise. Thus, the Court was unable to draw any inferences from the anecdotal evidence, in circumstances where the proposal was shown to sufficiently achieve relevant environmental noise standards.
Summary
This decision provides clarification in relation to the interpretation and application of uniform State-wide REF provisions.
The decision confirms that the REF provisions encourage the development of wind farms in appropriate locations.
The decision also confirms that zone provisions relating to visual amenity must be viewed in the context of the REF provisions, which necessarily assume there will be some modification to the landscape by wind farms.
The decision also confirms that notwithstanding that the establishment of a wind farm may cause noise impacts to some people, the REF provisions seek the avoidance or minimisation of excessive noise which, in turn, invites assessment against relevant noise standards.
For further information, please contact Peter Psaltis on 8210 1297 or ppsaltis@normans.com.au.
Development (External Painting) Variation Regulations 2010
These regulations introduce new Regulation 6C which will come into operation on 1 January 2011. Regulation 6C provides that the area published by the Minister in the Gazette on 16 December 2010 will be an area in which external painting of a building will be “development” (and thus require development approval).
The regulations also introduce a new exemption in Schedule 3 so as to permit “painting [which] involves the repainting of an existing painted surface in the same or similar colours and so as to provide the same or similar texture, finish and effect”.
The 16 December 2010 Gazette notice identifies two areas within the township of Gawler (being historic corridors) as being the area in which external painting controls will apply from 1 January.
For further information, please contact David Billington on 8210 1263 or dbillington@normans.com.au.
Variation of Existing Authorisations
In two recent decisions, the Environment, Resources and Development Court has provided further clarification about how to treat applications for variation of a development authorisation under Section 39(6).
Hannon v Adelaide Hills Council [2010] SAERDC 57
This case concerned an application to vary a condition to increase the hours during which it was permissible for delivery vehicles to attend a shopping complex.
The Council processed the application as a Category 1 application requiring no public notification, on the basis that the proposed development was minor and was unlikely to be the subject of reasonable objection by owners or occupiers in the locality. Third parties sought review of that decision.
The Court held that the application should not have been assigned to a category at all. That is because the subject of the application – variation of a condition regulating delivery times – did not involve “development” as defined in the Act. The Court held that there is public notification of variation applications which do not involve development, other than in cases where the original development was a category 3 development and where representations were made on any aspect of the development proposed now to be varied – see section 39(7)(c).
Adelaide Hills Recycling v Development Assessment Commission [2010] SAERDC 53
This case concerned an application to vary a condition to allow non-friable asbestos to be disposed at a waste depot. AHR appealed against the DAC’s decision that the application was non-complying, and Category 3.
AHR argued that the application did not involve “development” and thus could not be non-complying. AHR contended that the application was not Category 3.
The Court held that the essential nature of the use of the land as a landfill waste depot wouldn’t change on account of the new friable asbestos waste stream. The Court held that the condition which had hitherto prevented the disposal of asbestos did not stamp a particular character on the use of the land such that removal of the condition would change the use of the land.
The Court then found that because the application did not involve development, it was not non-complying. The Court held, further, that because there were no representations lodged in relation to the original application, the circumstances in section 39(7) of the Act were not met and so public notification was not required.
Implications of the decisions
When a planning authority is in receipt of an application for variation of an existing development authorisation, the planning authority must turn its mind to whether the proposed variation involves any act of “development” i.e. building work, a change in the use of land, heritage affecting activity, tree-damaging activity, etc.
If the proposed variation involves “development”, the application should be processed in the usual way, with consideration given to whether the proposed development comprising the variation is non-complying, categorisation for public notification purposes and so on.
If, on the other hand, the variation does not involve “development”, the application should not be treated as non-complying (or complying for that matter). Further, it should not be placed on public notification except in the limited circumstances contemplated in section 39(7)(c).
For further information, please contact Peter Psaltis on 8210 1297 or ppsaltis@normans.com.au.
Development (Miscellaneous No. 2) Variation Regulations 2010
These regulations provide a number of minor amendments which came into effect on 2 December 2010
Some of the more notable amendments include:
- A requirement that councils which receive development applications where the DAC is the relevant authority must now include an itemised break-down of fees paid when forwarding the application to the DAC.
- A similar requirement that any authority which refers an application to another body for concurrence must include an acknowledgement that all necessary fees have been paid, including an itemised break-down of the fees which have been paid.
- A requirement to obtain BRAC concurrence before granting building rules consent which is contrary to a fire authority recommendation.
- Substitution of Part 3.9.3 of Volume 2 of the Building Code with Minister's Specification SA 76D as the relevant standard which prescribed swimming pools (most pre-July 1993 swimming pools) must be upgraded to upon sale of the land upon which the pool stands. The Specification essentially adopts AS 1926:2007 Swimming Pool Safety Parts 1 and 2 but modifies the circumstances in which child-resistant doorsets may be used as a safety barrier.
- Expansion of bushfire prone areas to include general, as well as medium and high, bushfire risk areas, and to also include excluded areas within 500 m of a high risk area.
- Expansion of the prohibition upon occupation of not fully completed Class 1a buildings so as to require buildings in bushfire prone areas to comply with Minister’s Specification SA 78 before the prohibition can be relaxed.
- Replacement of the long-obsolete reference to “the published indicator rate for prime corporate lending” in Regulation 96 with “the 1 year fixed (non comparison) rate”, thus permitting interest upon outstanding debts incurred under, for example, Section 84 to be calculated.
- Expansion of the definition of “attributable wall” in Schedules 1A and 4 to include retaining walls.
- Expansion of the requirements in Schedules 1A and 4 so as to ensure sufficient room is left for wastewater disposal after development.
- Additional requirements in relation to open space and car parking have been introduced for ResCode development of second and further dwellings on a single allotment.
- Removal of the CFS referral for “CFS Referral Area” development (presumably because no such area exists).
- Annual returns for essential safety provisions must now also be provided for Class 9c buildings (in addition to Class 9a).
For further information on issues contained on this article, please contact David Billington on 8210 1263 or email dbillington@normans.com.au
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