Part 1Preliminary

Part 1—Preliminary 1—Short title These regulations may be cited as the Planning, Development and Infrastructure (General) Regulations 2017. 3—Interpretation (1) In these regulations— Act means the Planning, Development and Infrastructure Act 2016; class 1, 2 or 3 activity means an activity specified as a class 1, 2 or 3 activity under the site contamination practice direction; coastal land means land that is within the Coastal Areas Overlay under the Planning and Design Code; co‑located housing has the same meaning as in the Planning and Design Code; designated airport building heights area means an area identified under the Planning and Design Code (whether by use of an overlay or otherwise) as a designated airport building heights area; designated building means a building, or class of building, designated by the Minister in a notice under Schedule 8 clause 4(1)(j); designated building product means a building product, or kind of building product, designated by the Minister in a notice under Schedule 8 clause 4(1)(j); designated environmental zone, subzone or overlay means an environmental zone, subzone or overlay identified under the Planning and Design Code as a designated environmental zone, subzone or overlay; designated flood zone, subzone or overlay means a flood zone, subzone or overlay identified under the Planning and Design Code as a designated flood zone, subzone or overlay; designated regulated tree overlay means an overlay identified under the Planning and Design Code as a designated regulated tree overlay; essential safety provisions means— (a) in relation to a building erected or altered after 17 June 1991—any safety systems, equipment or other provisions defined as such, or required to be installed under the Building Rules or a Ministerial building standard, any former regulations under the Development Act 1993 or the Building Act 1971, or any Minister's Specification under the Development Act 1993; or (b) in relation to a building erected or altered after 1 January 1974 but before 17 June 1991—any safety systems, equipment or other provisions required under Part 59 of the revoked Building Regulations 1973 to be inspected, tested or maintained in good working order or submitted to a council, and in the case of log books, to be maintained and kept; fire authority means— (a) in relation to any part of the State where the South Australian Metropolitan Fire Service has responsibility for the provision of fire-fighting services—the South Australian Metropolitan Fire Service; (b) in relation to any other part of the State—the South Australian Country Fire Service; groundwater prohibition area means an area where the Environment Protection Authority has prohibited the taking of groundwater under section 103S of the Environment Protection Act 1993 (as shown on the South Australian Property and Planning Atlas); home activity means a use of a site by a person resident on the site— (a) that does not detrimentally affect the amenity of the locality or any part of the locality; and (b) that does not require or involve any of the following: (i) assistance by more than 1 person who is not a resident in the dwelling; (ii) use (whether temporarily or permanently) of a floor area exceeding 30 m2; (iii) the imposition on the services provided by a public utility organisation of any demand or load greater than that which is ordinarily imposed by other users of the services in the locality; (iv) the display of goods in a window or about the dwelling or its curtilage; (v) the use of a vehicle exceeding 3 tonne tare in weight; HomeBuilder development means development that complies with the requirements in regulation 3A(1a); Metropolitan Adelaide means Metropolitan Adelaide as defined by GRO Plan 639/93; more sensitive use means a change in the use of land that is determined to constitute a change to a more sensitive use of the land in accordance with the site contamination practice direction; outbuilding does not include a private bushfire shelter; prescribed fee means a fee prescribed for the purposes of the Act, these regulations or a related set of regulations; private bushfire shelter means a building, associated with a Class 1a building under the Building Code, that may as a last resort provide shelter for occupants from the immediate life threatening effects of a bushfire event; related set of regulations means— (a) the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019; or (b) the Planning, Development and Infrastructure (Fees, Charges and Contributions) Regulations 2019; remediation has the same meaning as in the Environment Protection Act 1993; sensitive use means a use described in item 1 or 2 of the land use sensitivity hierarchy table in the site contamination practice direction unless, in accordance with that practice direction, the use is not to be regarded as a sensitive use in the particular circumstances; site contamination, site contamination audit, site contamination auditor, site contamination audit report, site contamination consultant have the same respective meanings as in the Environment Protection Act 1993; site contamination practice direction means a practice direction issued by the Commission relating to the assessment of development involving site contamination or potential site contamination on land; writing in relation to an advertisement, means all modes of representing or reproducing in visible form (other than by means of any illuminating or self-illuminating devices) words, figures, emblems or other symbols or any combination of words, figures, emblems or other symbols. (2) The Planning and Design Code may identify— (a) different airport building heights areas as designated airport building heights areas; and (b) different environmental zones, subzones or overlays as designated environmental zones, subzones or overlays; and (c) different flood zones, subzones or overlays as designated flood zones, subzones or overlays, in relation to different provisions of these regulations. (4) For the purposes of these regulations, a reference to the natural surface of the ground, in relation to proposed development, is a reference to the existing ground level before the development is undertaken (disregarding any preparatory work or related work that has been (or is to be) undertaken for the purposes of the development). (5) For the purposes of these regulations, a reference to a particular level or class of accredited professional is a reference to that level or class of accredited professional under the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019. (6) For the purposes of these regulations, a statement of site suitability provided to a relevant authority in connection with an application for development authorisation— (a) must comply with any requirements specified by the Commission; and (b) must be issued by a site contamination consultant or a site contamination auditor (and the relevant authority cannot require that the statement only be prepared by a site contamination auditor unless the Environment Protection Authority directs the relevant authority to do so in relation to a particular application); and (c) must be in the form determined by the Commission for the purposes of this subregulation and published in the site contamination practice direction or another instrument published by the Commission on the SA planning portal. 3AA—Change of use of land (section 4) (1) For the purposes of section 4(3)(b) of the Act, circumstances in which the period intervening between the relevant discontinuance of a designated existing use of the Crown and Anchor Hotel land and revival of the use exceeds 12 months but is less than 2 years are prescribed. Crown and Anchor Hotel land has the same meaning as in section 135A of the Act; designated existing use, of the Crown and Anchor Hotel land, means a use of the land as at the relevant day; relevant day means the day on which this regulation comes into operation; relevant discontinuance, of a designated existing use of the Crown and Anchor Hotel land, means the first discontinuance of the use after the relevant day. 3A—Application of Act (section 8) (1) In accordance with section 8 of the Act, sections 151, 152 and 153 of the Act (relating to the classification and occupation of buildings) do not apply to any Class 1 or 10 building under the Building Code that is not within the area of a council. (2) In accordance with section 8(2) of the Act, section 102(1)(d)(viii) of the Act does not apply in respect of development that does not involve the creation of a new boundary— (a) that separates 2 or more sole occupancy units within an existing building; or (b) that bounds a public corridor within an existing building; or (c) that is within a prescribed separation distance from an existing building. (3) In accordance with section 8(2) of the Act, section 102 subsection (9) of the Act applies, in respect of development to which subsection (1)(d)(viii) of that section applies (taking into account the operation of subregulation (2)), on the basis that a reference to the Building Rules is a reference to Section C of Volume 1, and P 2.3.1 of Volume 2, of the Building Code. (3a) In accordance with section 8(2) of the Act, sections 213, 214 and 215 of the Act do not apply to circumstances in which there has been a contravention (whether before or after the commencement of this subregulation) consisting of a failure to comply with a condition relating to the provision of recycled water that is imposed under the Act in relation to a development authorisation issued for a development within a designated area. (4) Pursuant to section 8(2)(b) of the Act, section 215 of the Act applies with the following prescribed variation: Section 215—after subsection (4) insert: (5) Subsection (4) does not apply to prevent a person who owns ancillary accommodation from entering into an agreement for the residential occupation of the ancillary accommodation (such as a residential tenancy agreement or rooming house agreement (both within the meaning of the Residential Tenancies Act 1995)) with a person who is not a resident, or associated with a resident, of the dwelling in respect of which the accommodation is ancillary, or with any other person. ancillary accommodation has the same meaning as in the Planning and Design Code; designated area means a shaded area bounded by a bold black line in a map set out in Schedule 18; prescribed separation distance, in relation to a building, means the separation distance that applies to the building under the Building Code for the purpose of determining requirements for fire‑resistance of building elements under the Code; sole occupancy unit has the same meaning as in the Building Code. 3B—Additions to definition of development An act or activity in relation to land specified in Schedule 3 is declared to constitute development for the purposes of the Act. 3C—Exclusions from definition of development—general (1) Subject to this regulation, an act or activity specified in Schedule 4 is declared not to constitute development for the purposes of the Act. (2) An exclusion under Schedule 4 is subject to any condition or limitation prescribed by Schedule 4 for the relevant act or activity. (3) An exclusion under Schedule 4 does not apply in respect of a State heritage place. (4) An exclusion under Schedule 4 does not apply in respect of any work involving any repair to, or alteration or restoration of, a building that would cause the building not to comply with the Building Rules. (4a) An exclusion under Schedule 4 does not apply in respect of— (a) the construction of a new building exceeding 3 storeys in height; or (b) an alteration or extension to an existing building which will result in the building exceeding 3 storeys in height; or (c) the construction of a temporary or permanent structure exceeding 9 m in height, (4b) An exclusion under Schedule 4 does not apply in respect of an activity referred to in Schedule 3 clause 10 within the Tunnel Protection Overlay under the Planning and Design Code (unless the activity is undertaken by or on behalf of the Commissioner of Highways or the Rail Commissioner). (5) Nothing in this regulation or Schedule 4 affects the operation of Schedule 5. 3CA—Exclusions from definition of development—essential infrastructure (1) Subject to this regulation, an act or activity specified in Schedule 4A is, when carried on by a prescribed person, declared not to constitute development for the purposes of the Act. (2) If a prescribed person proposes to undertake any building work which is within the ambit of Schedule 4A, the person must, before commencing that building work— (a) give notice of the proposed work to the council for the area in which the building work is to be undertaken; and (b) furnish the council with— (i) a description of the nature of the proposed work; and (ii) so far as may be relevant, details of the location, siting, layout and appearance of the proposed work. (3) Subregulation (2) does not apply if the building work is within the ambit of Schedule 4, Schedule 5 or Schedule 7. (4) An exclusion under Schedule 4A is subject to any condition or limitation prescribed by Schedule 4A for the relevant act or activity. (5) An exclusion under Schedule 4A does not apply in respect of a State heritage place. (6) An exclusion under Schedule 4A does not apply in respect of any work involving any repair to, or alteration or restoration of, a building that would cause the building not to comply with the Building Rules. (6a) An exclusion under Schedule 4A does not apply in respect of— (a) the construction of a new building exceeding 3 storeys in height; or (b) an alteration or extension to an existing building which will result in the building exceeding 3 storeys in height; or (c) the construction of a temporary or permanent structure exceeding 9 m in height, (6b) An exclusion under Schedule 4A does not apply in respect of an activity referred to in Schedule 3 clause 10 within the Tunnel Protection Overlay under the Planning and Design Code. (7) Nothing in this regulation or Schedule 4A affects the operation of Schedule 5. (8) In this regulation— prescribed person means— (a) the holder of a licence under the Electricity Act 1996 issued in accordance with an order of the Minister under Part 5 of the Electricity Corporations (Restructuring and Disposal) Act 1999 authorising the operation of a distribution network or some other licence under the Electricity Act 1996 authorising the operation of all or part of that distribution network; or (b) the holder of a licence under the Electricity Act 1996 issued in accordance with an order of the Minister under Part 5 of the Electricity Corporations (Restructuring and Disposal) Act 1999 authorising the generation of electricity or some other licence under the Electricity Act 1996 authorising the generation of electricity by means of an electricity generating plant previously operated pursuant to the licence issued in accordance with the order of the Minister; or (c) the holder of a licence under the Electricity Act 1996 issued in accordance with an order of the Minister under Part 5 of the Electricity Corporations (Restructuring and Disposal) Act 1999 authorising the operation of a transmission network or some other licence under the Electricity Act 1996 authorising the operation of all or part of that transmission network, but does not include a State agency within the meaning of section 131 of the Act. 3D—Exclusions from definition of development—State heritage areas (1) Subject to this regulation, an act or activity specified in Schedule 5 that is to be undertaken within the State Heritage Area Overlay under the Planning and Design Code is declared not to constitute development for the purposes of the Act. (2) An exclusion under Schedule 5 is subject to any condition or limitation prescribed by Schedule 5 for the relevant act or activity. (3) An exclusion under Schedule 5 does not apply in respect of any work involving any repair to, or alteration or restoration of, a building that would cause the building not to comply with the Building Rules. 3DA—Definition of essential infrastructure (1) The following are within the ambit of the definition of essential infrastructure in section 3(1) of the Act: (a) data centres; (b) aged care facilities. aged care facility means a facility that provides supported accommodation for older people, and includes a retirement village that is co‑located with an aged care facility; retirement village has the same meaning as in the Retirement Villages Act 2016; supported accommodation has the same meaning as in the Planning and Design Code. 3E—Change in classification of buildings Any work or activity that results in a change to the classification of a building under the Building Code is prescribed as building work for the purposes of the Act. 3F—Regulated and significant trees (1) Subject to this regulation, the following are declared to constitute classes of regulated trees for the purposes of paragraph (a) of the definition of regulated tree in section 3(1) of the Act, namely trees within a designated regulated tree overlay that have a trunk with a circumference of 1 m or more or, in the case of trees that have multiple trunks, that have trunks with a total circumference of 1 m or more and an average circumference of 310 mm or more, measured at a point 1 m above natural ground level. (2) Subject to this regulation— (a) a prescribed criterion for the purposes of paragraph (b) of the definition of significant tree in section 3(1) of the Act is that a regulated tree under subregulation (1) has a trunk with a circumference of 2 m or more or, in the case of a tree with multiple trunks, has trunks with a total circumference of 2 m or more and an average circumference of 625 mm or more, measured at a point 1 m above natural ground level; and (b) regulated trees under subregulation (1) that are within the prescribed criterion under paragraph (a) are to be taken to be significant trees for the purposes of the Act. (3) For the purposes of subregulations (1) and (2), the measurement of the circumference of the trunks of a tree with multiple trunks is to be undertaken on the basis of the actual circumference of each trunk and without taking into account any space between the trunks. (4) Subregulations (1) and (2) do not apply— (a) to a tree located within 3 m of an existing dwelling or an existing in‑ground swimming pool, provided that the tree is on the same allotment as the dwelling or pool, other than a tree within 1 of the following species (or genus) of trees: Agonis flexuosa (Willow Myrtle) Angophora (any tree of the genus) Corymbia (any tree of the genus) Eucalyptus (any tree of the genus); or (b) to a tree of a species designated (from time to time) by the Minister by notice published on the SA planning portal; or (c) to a tree belonging to a class of plants to which a declaration by the Minister under Part 9 Division 1 of the Landscape South Australia Act 2019 applies; or (d) to a tree that may not be cleared without the consent of the Native Vegetation Council under the Native Vegetation Act 1991; or (e) to a tree planted as part of a woodlot, orchard or other form of plantation created for the purpose of growing and then harvesting trees or any produce. (4a) A notice under subregulation (4)(b) designating a species of tree— (a) may be of general or limited application; and (b) without limiting paragraph (a), may make different provision in relation to a species of tree according to the location of the tree, the circumstances or any other specified factor. (5) For the purposes of subregulation (4), the distance between a dwelling or swimming pool and a tree will be measured from the base of the trunk of the tree (or the nearest trunk of the tree to the dwelling or swimming pool) to the nearest part of the dwelling or swimming pool at natural ground level. The scheme set out in subregulations (1) to (5) relates to the declaration of trees to be regulated trees or significant trees by regulations under the Act. A tree may also be declared to be a significant tree by the Planning and Design Code, and such a declaration has effect independently from those subregulations. (6) For the purposes of the definition of tree damaging activity in section 3(1) of the Act, pruning— (a) that does not remove more than 30% of the crown of the tree; and (b) that is required to remove— (i) dead or diseased wood; or (ii) branches that pose a material risk to a building; or (iii) branches to a tree that is located in an area frequently used by people and the branches pose a material risk to such people; and (c) that is— (i) in the case of a tree on land owned by, or under the care, control and management of, a council—undertaken by or on behalf of the council at any time; or (ii) in any other case—undertaken at least 5 years after pruning of a kind referred to in this subregulation was last undertaken in relation to the tree, is excluded from the ambit of that definition. 3G—Aboveground and inflatable pools (1) Any work or activity involving the construction of an aboveground or inflatable swimming pool which is capable of being filled to a depth exceeding 300 mm is prescribed under paragraph (b) of the definition of building work in section 3(1) of the Act. (a) subregulation (1) does not apply if— (i) the swimming pool is being placed where, or approximately where, the pool, or another pool capable of being filled to a depth exceeding 300 mm, has been previously located within the last 2 years; and (ii) the placing of the pool, or another pool, at that location (or approximately that location)— (A) has been previously granted approval under this Act or the repealed Act, other than where any safety features required on account of that approval have been removed; or (B) occurred before 1 January 2004, other than where the pool that was previously so located did not incorporate a filtration system; and (b) subregulation (1) applies subject to any exclusions from the ambit of the definition of development under Schedule 4 or 5. swimming pool includes— (a) a paddling pool; and (b) a spa pool (but not a spa bath). 3H—Public notice (1) For the purposes of the definition of public notice under the Act, public notice is a notice that is— (a) published in a newspaper circulating generally in the area of the State that is relevant to the matter in relation to which public notice is to be given; and (b) published on the SA planning portal; and (c) for the purposes of section 113(5)(b) and (10)(b) of the Act, published in a newspaper circulating generally throughout the State; and (d) for the purposes of section 131(13) of the Act, placed on the relevant land in accordance with the requirements of regulation 107(6). (2) Subregulation (1)(d) does not apply— (a) in relation to any part of the State that is not within the area of a council; or (b) in relation to development that is to be carried out wholly on land covered by water. 3I—Prescribed period (section 44(12)(b)) For the purposes of section 44(12)(b) of the Act, the period of 15 business days is prescribed.