The new planning system & the role of local government By Alison Brookman & Felicity Niemann

Planning 101 under the Planning Development and Infrastructure Act 2016 – the new system and the role of local government

ALISON BROOKMAN, SPECIAL COUNSEL AND FELICITY NIEMANN, PARTNER, PLANNING & ENVIRONMENT, WALLMANS LAWYERS

This is a simplified summary of South Australia’s planning system and changes occurring at present pursuant to the Planning Development and Infrastructure Act 2016 (PDI Act). As an overview of the legislation, and not a detailed consideration of the Act, this article may be of interest to those lawyers not practicing in this area.

South Australia’s current planning system is a hybrid of that set up by the Development Act 1993 and the PDI Act. This is because the PDI Act is being phased into operation, with some parts of the State already subject to its provisions for assessment of developments. Full commencement of the new planning system is now expected to occur sometime next year 1 .

PLANNING POLICY

Under the Development Act 1993 all councils in the State are required to have a Development Plan which sets out all the planning provisions applicable in the council area. This includes the various zones into which the area is divided and the provisions or requirements applicable to those zones.

Once the PDI Act is fully operational the planning policies and zoning provisions will be found in a State-wide Code, the Planning and Design Code (the Code). This will be an online tool designed to interact with the e-planning system for development applications known as the SA Planning Portal.

The PDI Act establishes the State Planning Commission which acts as the principal planning advisory and development assessment body. It is also the body responsible for writing and maintaining the Code. The Code will set out the planning policies for the whole State against which developments must be assessed to determine whether approval will be granted. A council cannot initiate an amendment to the Code, unless it has the approval of the Minister acting on advice of the Commission. One of the more noticeable differences under the new system is that the setting of planning policy will be a very limited function of local government.

A number of council Development Plans have already been revoked as the Code is operational in outback and rural areas. Implementation of the Code in metropolitan Adelaide and a number of large towns has recently been deferred by the government, in these areas the existing Development Plans remain in force.

APPROVAL OF DEVELOPMENT

For most people any interaction with the planning system comes through development assessment, when a development is proposed or concerns are raised about another’s development. Both the Development Act 1993 and the PDI Act set out various pathways for assessment of developments, these are quite different. Both planning systems provide a general scheme and also provide for larger or more complex developments, those undertaken by the Crown and also for essential infrastructure.

Once again most people are more likely to come across the general scheme of development assessment as this will include the bulk of developments for which approval is sought.

The new planning system retains the concept of relevant authorities, the decision making body relevant for a particular development. There are now more relevant authorities than previously, but the basic principles are similar.

Under the Development Act 1993 councils established Development Assessment Panels which acted with the delegated authority of the council as the relevant authority. Now councils must appoint Assessment Managers and a Council Assessment Panel (CAP) which acts with its own powers pursuant to the PDI Act. There are provisions for other panels in some circumstances, but the CAP will be the most common.

A council itself may be a relevant authority, but this is limited to building rules consent and the issue of final development approval, as distinct from assessment against planning policy and the grant of planning consent. Under the PDI Act the council has no direct power to undertake planning assessment.

DEVELOPMENT ASSESSMENT

Any development must be approved, unless it is exempt. In order for a proposed development to gain approval it will be assessed against the provisions of the relevant Development Plan or the Code. Eventually the Code will be the only relevant instrument.

The Code exists online, see the SA Planning Portal, plan.sa.gov.au. The portal is also the vehicle by which development applications may be lodged online. It will also be the means by which proposed developments are notified, applications tracked, and where decisions are found. Currently development applications may be lodged online and also over the counter, but it is expected that in due course online lodgment will be required.

The planning assessment of a proposed development means that it is considered in accordance with the applicable zoning provisions to see if it complies, or fits comfortably enough to warrant consent. Often proposed developments are not word for word compliant with the zone provisions. Similarly zoning will usually describe a

variety of types of development which may be suitable in the area even if a particular type is most desirable.

An obvious example is a residential zone where dwellings will be desirable and encouraged. However the zone may also include allowance for other uses which may be appropriate such as offi ces, consulting rooms or perhaps tourist accommodation. There may be threshold criteria applicable to certain developments,

such as a limit of two storeys or buffer areas for industrial uses.

CONCLUSION

At present we have two planning systems in operation for different purposes. Once the Code and the PDI Act are fully operational it will be easier to advise with more certainty.

There is an impression that there is more with which to become familiar, being a larger Act, Regulations, Practice Directions and the online Code, along with new terminology and acronyms. Those practicing in this fi eld will need to become familiar with the PDI Act and its systems just as happened when the Development Act commenced. B

Endnotes 1 Media Release - ‘Updated timeline for new planning system rollout’ Attorney-General’s Department, 18

August 2020