Insights | Cracking the Code - Planning Law SA09 MAY 2018 | by Felicity Niemann
- The 'Blueprint for South Australia's Planning and Design Code' has recently been launched by the State Planning Commission
- In addition to re-shaping planning policy, the Planning Commission hopes to build on the "strong foundations of our past"
- It is an opportune time to go back to basics in relation to the legal concepts on drafting, interpreting and applying planning policy in South Australia
The recent launch of the State Planning Commission's 'Blueprint for South Australia's Planning and Design Code' is the first formal step in the preparation of the Planning and Design Code. It is anticipated that by 2020, a functional (if not complete) Code will replace all 72 Development Plans that currently exist across the State.
The Blueprint makes it clear, that in addition to re-shaping planning policy, the Planning Commission hopes to build on the "strong foundations of our past". The Planning Commission intends to have conversations with planning professionals including council development and policy officers to "identify, retain and transition good planning policies into the Code".
What makes good planning policy? For this, it is worthwhile going back to basics and consider what the Courts have previously said. As this project is in the early stages, it is an opportune time for planning professionals to revisit some of the well established legal concepts in relation to drafting, interpreting and applying planning policy in South Australia.
While the legislation and process with respect to planning and development in this State is changing, many of the common law findings by the Courts may continue to apply.
Some of those key principles, include:
- A Development Plan is not a statute and therefore should not be interpreted as one
- Special provisions in a Development Plan will prevail over those which have a more general application
- The Court will not insert or read words into a Development Plan
- The issue of whether a word or principle contained in a Development Plan is used in its ordinary sense, or has a technical meaning
As we enter a new era for planning and development in South Australia, these decisions may continue to be relied upon as good law. However, it is important to know that as the new legislation is tried and tested within the Court system, new legal principles will undoubtedly develop.
Neverthless, as the Blueprint anticipates, to move forward it will be necessary to build on the "strong foundations of our past" in both planning policy and on our relevant common law.
Felicity Niemann (Senior Associate) of Wallmans Lawyers and Greg Vincent of Masterplan will be taking a closer look at the above Court decisions and legal principles as well as the relevant provisions of the Planning Development and Infrastructure Act 2016 at their in-depth seminar, Cracking the Code – a comprehensive review of the law on drafting, interpreting and applying planning policy in South Australia on 25 June 2017.
For more details and tickets to this seminar, please click here.
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The content of this newsletter is for general information purposes only and should in no way be treated as formal legal advice.