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Insights | Transitional Arrangements - New Planning System

8 MARCH 2017

  • Statutes Amendment (Planning, Development and Infrastructure) Act 2017 assented on 28 February 2017
  • Transitional arrangements to bring into operation certain provisions of the Planning Development and Infrastructure Act 2016
  • Establishment of State Planning Commission and change to planning policy already underway

We have previously reported on the passing of the Planning Development and Infrastructure Act 2016 (PDI Act) which heralds a new planning system for South Australia. New administrative bodies are to be established, most notably the State Planning Commission, along with joint planning boards and new assessment panels. There will be a change to the methods for preparing and publishing planning policy at both State and Local Government levels. A Planning and Design Code along with Practice Directions and Practice Guidelines will be published to guide and regulate planning and development in South Australia.

The Community Engagement Charter (the Charter) will regulate engagement in planning policy and in development assessment.

While the PDI Act has received assent it has not yet commenced operation. A transitional bill, the Statutes Amendment (Planning Development and Infrastructure) Act 2017 (the Transitional Act) was assented on Tuesday 28 February 2017.

The Transitional Act provides that certain parts of the PDI Act and the Transitional Act will commence on 1 April 2017. Flexibility is built in allowing the Governor to declare a different day for commencement if necessary.

The first matter to be dealt with is the establishment of the State Planning Commission and supporting administrative committees. The Commission will then start work on the Charter and various planning policies. As recently as yesterday we saw the appointment of former Supreme Court Justice Tim Anderson QC as Chairperson of the State Planning Commission.

These comments refer to transitional arrangements for commencement and implementation of the new planning system.

Transitional Act – overview

Continuity

  • 1. The usual transitional arrangements are made to enable actions commenced under the Development Act 1993 (repealed Act) to continue and allowing for the validity of authorisations, consents, approvals and decisions made under the repealed Act. There are also the expected provisions amending other legislation in which references are made to the repealed Act, replacing this with the PDI Act.
  • 2. A designated day will be proclaimed. This day will be relevant for the purpose of the provision in which it is used, the relevant time for the commencement of certain transitional provisions and commencement of time running in relation to certain actions under the PDI Act. There will likely be different designated days for different purposes.
  • 3. The concept of change of use (which is altered by the PDI Act), and a relevant period of discontinuance of use, is dealt with to ensure continuity and provide for a period of discontinuance which may commence before the designated day

Governance

  • 4. On and from the designated day the State Planning Commission will assume the functions, powers and duties of the Development Assessment Commission, the Building Rules Assessment Commission and the Development Policy Advisory Committee. These designated entities will be dissolved on the designated day.
  • 5. The State Planning Commission must delegate any functions or powers as a relevant authority in relation to the grant of planning consent under the repealed Act, which it may acquire from the designated entities, to committees that will be established or to a person holding a particular office.
  • 6. During passage through Parliament the Transitional Act made amendments to vest further powers which were originally vested in the State Planning Commission, in the Minister. The Minister’s powers are also broad in relation to amendment and revocation of Development Plans.

Planning Policy

  • 7. The Planning and Development Code will ultimately guide planning throughout the State. In the meantime a Development Plan will continue to apply as if it formed part of the Code. The Minister may amend a Development Plan if so provided in the Code or due to inconsistency with the Code.
  • 8. Reference to a Development Plan in any other legislation is taken to be a reference to the Planning and Design Code.

Development Assessment

  • 9. Assessment panels will act as delegates of councils. If a council does not appoint an assessment panel the Minister may do so. An assessment panel may adopt a decision or direction of a council development assessment panel made under the repealed Act. It may also continue to deal with any matters not completed, reserve matters or variations.
  • 10. Major projects already declared under the repealed Act will continue to be subject to that Act but the Minister will have the powers previously exercised by the Governor. The decision will have effect as if it is a decision under the new s115 of the PDI Act, impact assessed development.
  • 11. A Crown development application may also be continued and completed under the repealed Act, the decision will be taken to be a decision under the PDI Act.
  • 12. Where a development application is made after the designated day and a Development Plan is still relevant to the assessment;
  •     12.1. complying development under the Development Plan will be taken to be classified as deemedto-satisfy development under the PDI Act, 
  •     12.2. non-complying development under the Development Plan will be taken to be restricted development, and the relevant authority will be the assessment panel which must comply with published Practice Directions in relation to assessment of the development,
  •     12.3. a merit development will be taken to be a development assessed on its merit under the PDI Act.

Other Transitional Provisions

13. The Minister may authorise pilot schemes for infrastructure delivery, this may be done even if the relevant section of the PDI Act has not commenced operation. The Minister may only do so at the request of a person interested in the provision or delivery of infrastructure and the scheme is suitable to act as a pilot scheme. The Minister must within 6 sitting days of the declaration lay a report before both Houses of Parliament.

14. Land Management Agreements continue with the same terminology, and those in force as at the designated day will be taken to be an agreement under the PDI Act.

15. Provision is made for the continuation of funds.

16. Clause 51 of the Transitional Act is a general saving provision, such that any rights accrued under the provisions of the repealed Act are not affected nor is the validity of any decision, authorisation or notice given.

Further transitional provisions may also be made by regulations.

What to expect next

Now that the Transitional Act has passed, it will be important for planning professionals, council officers and interested parties to continue to monitor changes in this space. Particularly, as the State Planning Commission is being established and changes to existing planning policy will soon follow. Continue to monitor what is happening through the SA Planning Portal by clicking here.

Should you require any further detailed advice or training as to any of the changes, please feel free to contact us.

 

Disclaimer

The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.