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If notice is required under the PDI Act, the prescribed notice must tell the neighbours what work is to be done on the neighbours' land, when it will commence and when it is expected to end. The notice must be given at least 20 days before the work commences.
For many years the law in South Australia has required a “developer” (including owner-builders) who is intending to excavate material from near their property boundary to give notice to the neighbours on that boundary under certain circumstances. The law has however been significantly modified by the Planning, Development and Infrastructure Act 2016 (“PDI Act”) which has come into force progressively over the last four years or so. The requirement to give notice is now less likely to arise than it did under the repealed Development Act 1993.
Both the PDI Act and the Development Act refer to a test which may exclude the need to give any notice to the neighbours. The test describes an imaginary plane, extending from a line 600mm below the boundary line into the property being developed, and downwards at a slope of 1 unit vertically for each 2 units horizontally. If the excavation does not cross that plane, there is no need to give notice. Under the Development Act, if the excavation crossed that plane, notice had to be given.
The PDI Act however contains an additional criterium which may exclude the need for notice to be given. Under that Act, notice is only required;
” … if a development approval envisages that a person who undertakes the development will require access to other land or premises in order to address an effect on the stability of that land … “.
Under the PDI Act, even if the excavation will cross the imaginary plane, notice to the neighbours will not be required if the “development approval envisages” that the developer can address any stability issues without access to the neighbours’ land.
If notice is required under the PDI Act, the prescribed notice must tell the neighbours what work is to be done on the neighbours’ land, when it will commence and when it is expected to end. The notice must be given at least 20 days before the work commences. This gives the neighbours the opportunity to obtain advice from an engineer as to whether the work proposed will be sufficient to protect their land. Similar provisions were included in the Development Act. The key difference however is that under the PDI Act, there may be no requirement to serve a notice, and excavation crossing the imaginary plane may commence without any warning to the neighbours.
As a result of subdivision of land and “urban infill”, excavations very close to, or on, boundaries is becoming more frequent. The law now leaves it up to the developer and the assessment panel or other “relevant authorities” to determine what is necessary to protect the neighbours’ property, and the neighbours will have no advance notice of the relevant works unless the development approval “envisages” that access to the neighbours’ land will be required. Other “common law” principles such as negligence and nuisance may still be relevant in these situations, however the law has been changed in a way which makes it easier in many instances for a developer to proceed with development without interaction with the owners of neighbouring properties. In some instances developers may be keen to find a way to do the relevant works without access to the neighbours’ land, even if this results in an inferior outcome for the neighbours.