Victoria Shute, lawyer at KelledyJones Lawyers, discusses how the industry has changes in the last few months, as the Planning and Design Code is in the process of being implemented. She will delve further into how this implementation will impact the industry at her upcoming presentation at the upcoming Planning Law Reform Update on Tuesday 13 October.
South Australia’s planning reforms have advanced somewhat in the past few months since March.
The full implementation of the Planning, Development and Infrastructure Act 2016 is linked to the commencement of the Planning and Design Code – the document against which all planning applications are to be assessed under the new system.
The Planning and Design Code is being commenced in three (3) Phases. Phase 1 applies to land located outside of council areas and commenced in July 2019. Phase 2 applies to a number of rural council areas and commenced on 31 July 2020. There is presently no confirmed commencement date for the commencement of Phase 3. The phased commencement of the Planning and Design Code has resulted in an interesting situation where some of the State is operating entirely under the new system, with new accreditation, governance and electronic lodgement and assessment requirements whereas the remainder of the State is operating under the old system.
Phase 2 council areas are navigating the new system together with the electronic lodgement system, Plan SA and are discovering benefits as well as areas requiring refinement. Phase 2 ‘road testing’ of the Planning and Design Code and Plan SA is already resulting in proposals to amend and refine the new system. In particular, issues concerning the interpretation of assessment criteria, public notification requirements and referrals have been identified.
Multiple, significant variations have occurred to the regulations under the Planning, Development and Infrastructure Act 2016, including but not limited to the Planning, Development and Infrastructure (General) Regulations 2017, the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 and the Planning, Development and Infrastructure (Accredited Professionals) Variation Regulations 2019 which have caused notable changes to the manner in which the new system will operate. In particular, variations have occurred to facilitate bushfire recovery efforts, assist businesses and the community during COVID-19 pandemic restrictions, better facilitate indemnities for assessment panel members and Assessment Managers making decisions under the Act, clarifying when and how notification signage is placed on development sites and creating fees for when this service is provided by a council, allowing councils to require inspections to occur before certificates of occupancy are issued, and, controversially, allowing the Planning and Development Fund to be applied to the establishment of projects associated with the implementation of the Act.
As well as variations to legislation, the Ministerial and organisational structure under which planning functions operate at the State Government level have changed considerably. A new Minister for Planning has been appointed – the State’s Attorney General, Vickie Chapman MP and planning functions have been separated from Transport and Infrastructure which are under the oversight of a separate Minister, Rob Lucas MLC. The new Minister for Planning has publicly confirmed delay to the implementation of Phase 3 and time will tell whether further changes to the new system will follow as a result of new leadership.
The changing nature of the new system must be understood to ensure that development applications are properly lodged and assessed under the new system and that appropriate advice can be given to clients whether they are required to lodge applications under the new system or are preparing to do so. This knowledge is critical for lawyers who provide advice to clients on planning and building assessments and compliance matters.
Victoria Shute is a specialist practitioner with extensive experience in providing advice and representation to councils, statutory bodies and private clients on planning, building and environmental issues. Victoria’s expertise has been recognised through her inclusion in the Best Lawyer’s Australia list as an outstanding practitioner in Planning and Environmental Law from 2014 to present as well as being recognised in Doyle’s Guide of Leading Planning and Environment Lawyers. You may connect with Victoria via email or LinkedIn