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LG Alert – Calling them in or calling them out? – Amendments to Schedule 10 of the Development Regulations (August 16th, 2017)

On Tuesday 16 August 2017, a variation to schedule 10 of the Development Regulations 2008 was made by way of notification in the Government Gazette of the commencement of the Development (Schedule 10) Variation Regulations 2017 (“the Regulations”). The Regulations came into operation that day.

The Regulations have the effect of deleting the existing clause 20 of Schedule 10, being “Certain Developments over $3m” and substituting it with a new clause 20 being “Certain developments – Metropolitan Adelaide over $5m or outside Metropolitan Adelaide over $3m”.

Clause 20 now provides that in order for a development located in Metropolitan Adelaide to be “called in” by the State Coordinator-General, for assessment by the (now) State Planning Commission, the total amount to be applied to any work (as determined in accordance with a new subclause 3), when all stages of the development are completed, must exceed $5 million.

Any development not within Metropolitan Adelaide retains the $3 million development threshold.

Metropolitan Adelaide” is not separately defined, so takes its meaning from the Development Act 1993.

Notably, the additional “test” under clause 20 that previously required a development (in addition to meeting the monetary threshold) to also be of “economic significance to the State” has been deleted. Rather, under the amended clause, the proposed development now must not be “solely for prescribed residential purposes.”

Prescribed residential purposes” is defined as a single private dwelling or multiple private dwellings, but does not include purpose built student accommodation, aged care or serviced accommodation.

Subclause 3 is also a new inclusion, and specifies the matters to be taken into account in determining the total amount to be applied to any works. This subclause provides clarity around what the State Coordinator-General can consider in determining the total amount to be applied to any work on a development, and relevantly provides this includes any amount to be applied to:

  • any building or structure or any improvements or other physical changes to a building or structure; and
  • any improvements or physical changes to land; and
  • any preliminary work (including, without limitation, site clearance, demolition and remediation); and
  • any professional services; and
  • the provision of, or any modifications to, infrastructure; and
  • any construction work, fit out, signage, utilities, communications, security services, landscaping and contingencies;
  • but does not include an amount to be applied for the purchase of land or any interest in land.

It appears the amendments to clause 20 are a direct response following publication of the Ombudsman’s Final Report in relation to an investigation into whether the Office of the State Coordinator-General erred in concluding that the total amount to be applied to works associated with a development at 285-287 Kensington Road would exceed $3 million and that the proposal was of economic significance to the State. A copy of the Ombudsman’s Final Report in relation to that matter can be accessed here.

If you have any questions regarding the above please contact Victoria Shute at vshute@kelledyjones.com.au or on 8113 7104 or Tyler Johns at tjohns@kelledyjones.com.au or on 8113 7108.