Conquering the Realm of Uncertainty: Amendments to Res Code and private planning certification laws

The decision in Mundy[1] highlighted substantial uncertainty in the Development Regulations 2008 about the interpretation of the residential code (Res Code) provisions and the related role and powers of private planning certifiers.
Following Mundy, the State Government has introduced the Development (Residential Code) Variation Regulations 2016 (the Variations) which were gazetted on 8 December 2016 and came into operation on the same day.
The facts in Mundy
Mr Mundy obtained a privately-certified development plan consent and Building Rules consent from a private certifier for the demolition of an existing dwelling and the construction of two single storey dwellings.
The certifier issued the development plan consent as a “minor variation” to complying residential code development under section 35(1b) of the Development Act 1993.  The Council asserted that the development plan consent was invalid and refused to issue a development approval.  Mr Mundy appealed this decision to the ERD Court.
The frontage widths of Mr Mundy’s dwelling sites were about 70 centimetres below the relevant minimum frontage width and the front dwelling setbacks were 45 centimetres below the average setbacks of the adjoining dwellings.
Because of the frontage widths, it was not possible for Mr Mundy’s development to fully comply with all of the Res Code criteria.  However, Mr Mundy’s private certifier considered the variances to be “minor variations” from the Res Code criteria and granted a development plan consent.
The Council argued that Mr Mundy’s private certifier could only exercise the “minor variation” power under section 35(1b) of the Act where it was possible to have a “fully compliant” Res Code development on the land in the first place.
On the Council’s argument, because no Res Code “complying” development was technically possible on Mr Mundy’s land, it was not possible to have a “variation” from any such complying development. The Court accepted that the proposed development was not a Res Code development or a “minor variation” from Res Code development.
The Court also found that the requirement for two parking spaces for a dwelling with two or more bedrooms could not be satisfied by treating a driveway as one of those two parking spaces.
The Court held that the combination of the variances did not together comprise a “minor variation” from a Res Code “complying” development, and that the private certifier’s decision to issue the development plan consent was invalid.
The Variation Regulations 
The new Variation Regulations are comprehensive and are intended to clarify the State Government’s intent for the Res Code and the roles of private planning certifiers.
Regulation 89 has been expanded to expressly authorise a private certifier to exercise the powers and duties of a relevant authority (for Res Code development), including powers to:

  • assess whether a development is a Res Code “complying” development (regulation 8A(2)(a)(i));
  • assess whether any departure from the form of a Res Code “complying” development constitute a “minor variation” from that development (thus enabling the certifier to determine that the development is a “complying development” under section 35(1b) of the Act) (regulation 8A(2)(a)(ii));
  • certify that a development complies with the provisions of the appropriate development plan (which certification must be accepted by the relevant authority to the extent so certified under section 35(6) of the Act) (regulation 8A(2)(b));
  • form opinions about the nature of a development (including whether or not a development is a Res Code development) and inform the applicant of those opinions (under regulation 16);

A new regulation 8A clarifies that –

  • a reference to a “minor variation from complying development” in section 35(1b) of the Act “is a reference to a variation from complying development that is, in the opinion of the relevant authority (which includes a certifier), minor” (regulation 8A(1)(b)(ii));
  • a relevant authority may determine that “2 or more minor variations, when taken together, constitute a “minor variation from complying development” (8A(1)(b)(iii));

The Variation Regulations make a raft of detailed changes to clarify the various Res Code “complying development” criteria, including:

  • clause 2B(5) – clarifies that the site area and the minimum frontage criteria are not in the nature of “mandatory” criteria, such that the minimum frontage width and site area criteria can be the subject of a valid “minor variation” under section 35(1b);
  • clause 2B(6)(a)(i) – removes the previous requirement that a dwelling not be set back “in front of the average setbacks” of any existing dwelling(s) on any adjoining allotment(s). A setback of up to 1 metre in front of the average setbacks of any existing dwellings, or buildings (if there are no dwellings) on any adjoining allotment(s) is now permitted.
  • clause 2B(6)(l)(ii) – to clarify that one of the two required car parking spaces for a dwelling with two or more bedrooms may comprise a driveway.

We welcome the amendments introduced by the Variation Regulations.  We believe that the amendments will better achieve the intent of the Res Code and provide far greater certainty and increased efficiency for developers and private planning certifiers in South Australia.

For further information about the Variation Regulations please contact James Levinson, Tom Game or Tom Crompton on 8212 9777.
[1] Mundy v City of West Torrens [2016] SAERDC 30.