Australia: South Australia set to reform planning and development system

Clayton Utz Insights

Key Points:

New assessment bodies and processes are proposed for South Australia's planning and development laws.

The South Australian Government has introduced a new bill aimed at overhauling the planning and development system, including a new infrastructure delivery scheme.

The Planning, Development and Infrastructure Bill 2015 was introduced into the South Australian Parliament on 8 September 2015 to provide for matters relevant to the use, development and management of land and buildings within the State. If passed, the Bill will repeal the Development Act 1993 and make related amendments to various pieces of legislation.

Need for reform of the planning and development system

In February 2013, a five-member Expert Panel was appointed to provide recommendations for a new planning system. The Final Report by the Expert Panel, The Planning System We Want, was delivered to the Minister for Planning on 12 December 2014 and contained 22 recommendations. Based upon those recommendations, the Department of Planning, Transport and Infrastructure has prepared a bill that contains a new framework and structure for the South Australian planning system which it claims will:

  • provide certainty to applicants and communities through streamlined, digitally enabled processes
  • promote high quality design for the built environment and public realm
  • require a co-ordinated approach to planning and delivering infrastructure
  • require that decision-makers possess relevant professional qualifications or experience
  • promote a culture of collaboration and community engagement in the planning and development of the State.

There are a raft of changes proposed by the Bill, and below are just some of our immediate observations of the key items.

Independent State Planning Commission

The Bill will establish a State Planning Commission which will consists of at least four and not more than six suitably qualified persons appointed by the Minister and the Chief Executive (ex officio) and will have the following functions:

  • to act as the State's principal planning advisory and development assessment body;
  • to support the Minister by providing advice, reports and making recommendations;
  • to work with other entities who play a role in the planning, development and infrastructure provisions in South Australia, including government, business, councils and communities;
  • to conduct inquiries with respect to any matter either referred by the Minister or determined by the Commission with approval from the Minister; and
  • to work with the Chief Executive on a range of matters.

The Commission will be subject to the general control and direction of the Minister, but the Minister may not give a direction where the Commission:

  • is making or required to make a recommendation; or
  • is providing or required to provide advice to the Minister; or
  • is required to give effect to an order of a court; or
  • has a discretion in relation to the granting of a development authorisation.

A new rulebook for planning

The Planning and Design Code, which the Minister will be responsible for preparing and maintaining, is proposed to replace the current 23,000+ pages of planning rules and:

  • must set out a comprehensive set of policies, rules and classifications which may be selected and applied in the various parts of the State for the purposes of development assessment and related matters within the State; and
  • will incorporate a scheme that includes the use of zones, subzones and overlays and specify policies and rules which govern the use and development of an area within those zones, subzones and overlays.

Reduced red tape

A variety of mechanisms are proposed by the Bill to reduce the assessment timeframes for certain development, for example the application of assessment categories will determine the length of assessment (if any) required; complex proposals will be able to seek "outline consent" for an overall masterplan, with subsequent consents sought for individual components; and agency referrals will be codified which aims to provide certainty during the assessment process.

There will be three categories of assessment in relation to planning consent:

  • accepted development: development which is classified by either the Planning and Design Code or the regulations as being accepted development does not require planning consent;
  • code assessed development: development which is classified by the Planning and Design Code as deemed-to-satisfy development and is not accepted development or impact assessed development. Planning consent must be granted and no process for public notification or submissions is required. Where proposed development is to be assessed as code assessed development and the development cannot be assessed, or fully assessed, as deemed-to-satisfy development, the development will be assessed on its merits against the Planning and Design Code; and
  • impact assessed development: development which is classified by the Planning and Design Code as restricted development; or classified by the regulations as impact assessed development; or declared by the Minister as being impact assessed development.

Proposed development may also be classified as restricted development. In this case, the Commission will determine whether or not the development will be assessed and, if so, whether or not planning consent will be granted. The Commission will act as the relevant consent authority in such instances.

New infrastructure delivery scheme

The Bill provides that the Minister may initiate an infrastructure delivery scheme in relation to the provision of essential infrastructure (and the undertaking of any related development) by the Minister's own initiative or by request of another person or body interested in the provision or delivery of infrastructure. This could include a council, a developer, an urban renewal precinct authority or an infrastructure provider among others.

An infrastructure delivery scheme will:

  • provide detailed information about the nature and intended scope of the infrastructure and any related development that is proposed to be undertaken as part of the scheme;
  • identify the location in relation to which it is proposed that the scheme will be established;
  • provide information about the proposed timing or staging of the various elements of the scheme;
  • assesses the costs and benefits of the scheme;
  • outline a funding arrangement for the scheme, which can include a proposal for the collection of contributions for specified areas (to be called a contribution area) to be imposed;
  • provide information about the person or body that will be carrying out the work;
  • identify any infrastructure or other assets that might be expected to be transferred to another entity when the scheme has been completed; and
  • provide such other information as the Minister thinks fit.

The schemes will therefore, be based on funding defined infrastructure and not on an infrastructure charge or levy. The costs will then be recovered by way of a "charge on land" in the contribution area, which will be collected by the relevant council for that contribution area or multiple councils where contribution areas overlap.

Appeal rights

Under the Bill, appeal rights will be directly linked to each category of assessment:

Other changes at a glance

Development category

Review and appeals

Accepted Development

No appeal rights

Deemed-to-Satisfy Development

Applicant may appeal substantive decision

Performance Assessed Development

Applicant may appeal substantive decision

Impact Assessed Development

Only judicial review is available for decisions (this is currently precluded by a privative clause in the current Act that is to be removed)

No applicant or third party appeals (same as current Act)

Restricted Development

Applicant may appeal initial decision of commission to refuse assessment

Applicant may appeal substantive decision

Third parties may appeal substantive decision

The following are also proposed by the new Bill:

  • a Community Engagement Charter: to be established and maintained by the Minister in accordance with key principles set out in the Bill to allow community members to have reasonable, meaningful and ongoing opportunities to participate in planning processes;
  • a new state design quality policy: to be developed, which along with the new Planning and Design Code, will set the standards for the design quality of development; and
  • a new e-planning system: an online portal will be established for digital lodgement options and planning information. This aims to reduce the time and cost for applications which exist due the heavily paper-based processes which currently exist and planning information will be more easily accessible. This may look similar to the new NSW Department of Planning and Environment online PlanningHub.

What next?

Debate on the Bill has been adjourned.

Following consideration of the Bill by Parliament and incorporation of any amendments, the Department has stated that:

  • the Government will develop a detailed implementation plan in consultation with councils and other stakeholders;
  • new planning rules will be developed after extensive consultation; and
  • a second bill dealing with implementation measures and amendments to related laws will be developed for parliament to consider in 2016.

It is anticipated that the implementation of the new planning system will take three to five years and therefore, the existing planning system will continue to operate.

A copy of the Bill can be found on the South Australian legislation website and factsheets and supporting documents can be found on the Department's website as well as a Technical Guide.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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