South Australian Current Acts

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DEVELOPMENT ACT 1993 - SECT 36

36—Special provisions relating to assessment against the Building Rules

        (1)         If the regulations provide that a form of building work complies with the Building Rules, any such building work must be granted a building rules consent (subject to such conditions or exceptions as may be prescribed by the regulations or the Development Plan).

        (2)         Subject to subsection (3), a development that is at variance with the Building Rules must not be granted a building rules consent unless—

            (a)         the variance is with the performance requirements of the Building Code and the Building Rules Assessment Commission concurs in the granting of the consent; or

            (b)         the variance is with a part of the Building Rules other than the Building Code and the relevant authority determines that it is appropriate to grant the consent despite the variance on the basis that it is satisfied—

                  (i)         that—

                        (A)         the provisions of the Building Rules are inappropriate to the particular building or building work, or the proposed building work fails to conform with the Building Rules only in minor respects; and

                        (B)         the variance is justifiable having regard to the objects of the Development Plan or the performance requirements of the Building Code and would achieve the objects of this Act as effectively, or more effectively, than if the variance were not to be allowed; or

                  (ii)         in a case where the consent is being sought after the development has occurred—that the variance is justifiable in the circumstances of the particular case.

        (2a)         No appeal lies against—

            (a)         a refusal of concurrence by the Building Rules Assessment Commission under subsection (2)(a); or

            (b)         a refusal of building rules consent by a relevant authority if the Building Rules Assessment Commission has refused its concurrence under subsection (2)(a); or

            (c)         a condition attached to a consent or approval that is expressed to apply by virtue of a variance with the performance requirements of the Building Code.

        (2b)         A relevant authority may, at the request or with the agreement of the applicant, refer proposed building work to the Building Rules Assessment Commission for an opinion on whether or not it complies with the performance requirements of the Building Code.

        (2c)         In addition, regulations made for purposes of this subsection may provide that building work of a prescribed class must not be granted a building rules consent unless the Building Rules Assessment Commission concurs in the granting of the consent.

        (3)         Where an inconsistency exists between the Building Rules and a Development Plan in relation to a State heritage place or a local heritage place

            (a)         the Development Plan prevails and the Building Rules do not apply to the extent of the inconsistency; but

            (b)         the relevant authority must, in determining an application for building rules consent, ensure, so far as is reasonably practicable, that standards of building soundness, occupant safety and amenity are achieved in respect of the development that are as good as can reasonably be achieved in the circumstances.

        (3a)         A relevant authority must seek and consider the advice of the Building Rules Assessment Commission before imposing or agreeing to a requirement under subsection (3) that would be at variance with the performance requirements of the Building Code.

        (4)         Subject to this Act, a relevant authority must accept that proposed building work complies with the Building Rules to the extent that—

            (a)         such compliance is certified by the provision of technical details, particulars, plans, drawings or specifications prepared and certified in accordance with the regulations; or

            (b)         such compliance is certified by a private certifier.

        (5)         No act or omission by a relevant authority in good faith in connection with the operation of subsections (3) or (4)(a) (other than where a certificate under subsection (4)(a) is given by a private certifier 1 ) subjects the relevant authority to any liability.

        (6)         The relevant authority may refuse to grant a consent in relation to any development if, as a result of that development, the type or standard of construction of a building of a particular classification would cease to conform with the requirements of the Building Rules for a building of that classification.

        (7)         If a relevant authority decides to grant building rules consent in relation to a development that is at variance with the Building Rules, the relevant authority must, subject to the regulations, in giving notice of its decision on the application for that consent, specify (in the notice or in an accompanying document)—

            (a)         the variance; and

            (b)         the grounds on which the decision is being made.

Note—

1         See section 89 with respect to certificates given by private certifiers.



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