Heritage Information Leaflet 1.6

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Summary of Heritage Provisions in the Development Act 1993

To protect places and areas of heritage significance for present and future generations, specific legislative safeguards have been created to guide their identification, registration, conservation and development. Relevant legislation includes the Heritage Places Act 1993, the Development Act 1993, and separate State and Australian Government Historic Shipwrecks Acts. This guide looks at the heritage provisions of the Development Act.

The Development Act 1993 protects places and areas of both State and local significance. In relation to places and areas of State significance it:

• provides for the creation of State Heritage Areas by including them in a council's Development Plan; and
• manages change and development affecting State Heritage Areas, and State Heritage Places protected under the Heritage Places Act 1993, by means of its Development Assessment process.

In relation to places and areas of local significance it:

• provides for the identification and assessment of local heritage places and areas (called Historic (Conservation) Zones or Historic Policy Areas), and for their creation through inclusion in a council's Development Plan; and
• protects local heritage places with a separate but similar Development Assessment process to that for State Heritage Places.

State Heritage Places and State Heritage Areas

The information in this guide is a general explanation of the heritage provisions in the Development Act applying to places and areas of State heritage significance. It does not deal with the provisions for places and areas of local heritage significance. An overview of local heritage provisions can be found in Heritage in a Nutshell (150Kb PDF). To understand the specific provisions of the law, refer directly to the legislation.

Protecting State Heritage Places is one of the many functions of the Development Act within an integrated planning and development system. The provisions for State Heritage Places also apply to any property within a State Heritage Area, regardless of whether a place is included in the Register as a State Heritage Place in its own right.

Who administers the Development Act?

Overall responsibility for the Development Act rests with the Minister holding the planning portfolio, supported by the Government's planning agency (Planning SA).

The assessment and approval of development proposals is the responsibility of the relevant local council - except for land division or for development undertaken by the Government (and in some cases by the local council). In these cases, the assessment is undertaken by the Development Assessment Commission (DAC), an independent advisory body to the Planning Minister.

What is development?

The Development Act defines the activities and types of work that are considered to be 'development'. Anything that constitutes development requires approval under the Act. In relation to any property, regardless of heritage listing, this includes land division, change of land use and building work.

In relation to a State Heritage Place, the Act contains a general definition of 'development' that covers demolition, removal, conversion, alterations, additions and painting, plus any other work that could materially affect the heritage value of the place. Other activities that constitute development specifically in relation to a State Heritage Place are identified by schedules in the Development Regulations. These include fences, internal work, outbuildings, pools, air conditioners and aerials.

The Development Regulations also contain a schedule applying only to the Colonel Light Gardens State Heritage Area within the City of Mitcham. It details particular activities that are not regarded as development, and for which development approval is therefore not required.

The development assessment process is comprehensive and aims to protect heritage significance within a context of ongoing change. The factors that are taken into account range from the broad scale (such as the wider visual setting of a heritage place or area), through more immediate considerations (such as the sympathetic design of adjacent development, and alterations or additions to the place itself), right down to the fine detail of conserving the physical fabric of the place with carefully-considered materials, finishes, workmanship and components.

How is a development application lodged?

Applications for development approval are made to the local Council. Applications for places outside Council areas and for land division are lodged with the DAC.

Owners are encouraged to contact the Heritage Branch at an early stage to discuss concepts prior to drawing up their proposals. The processing of development applications is usually expedited by these early discussions.

How is a decision made?

No development that affects a State Heritage Place is classified as 'complying' development, meaning that each case is considered on its merits.

The Act requires the local council (or DAC) to forward any application affecting a State Heritage Place to the Minister responsible for the Heritage Act. The Heritage Branch assesses these applications and provides a report back to the local council or DAC on the Minister's behalf. If the local council is part of the Heritage Branch's Heritage Advisory Service, the heritage adviser is also involved in assessing these applications.

The local council or DAC must have regard to the Minister's advice in reaching its decision on the application. If a local council wishes to grant a consent that is at variance to the Minister's advice, it must first obtain the concurrence of the DAC, but may refuse the application without needing the DAC's concurrence.

The Development Act requires that any application for development within 500 metres of a protected shipwreck or maritime relic is referred to the Minister responsible for the protecting Act - either the State Historic Shipwrecks Act 1981 or the Australian Government Historic Shipwrecks Act 1976. For both Acts the assessment and report is again undertaken on behalf of the relevant Minister by the Heritage Branch. The Minister's advice in this case takes the form of a directive that must be followed by the council, and can include a direction to refuse an application.