Planning, Development and Infrastructure Laws: SA's Major Reform Bill

Wednesday 16 September 2015 @ 11.25 a.m. | Legal Research | Trade & Commerce

On 8 September 2015 the South Australian (SA) Minister for Planning introduced into the SA House of Assembly (Assembly) the Planning, Development and Infrastructure Bill 2015 (the PDI Bill). The PDI Bill is intended to replace the existing SA planning regime under the Development Act 1993 and, as such, represents a major reform and restructure of the SA Planning system.

Purpose of the Legislation

The proposed legislation will make provision for matters that are relevant to the use, development and management of land and buildings. It is also to include the provision of a planning system to regulate development within SA, and to provide rules with respect to the design, construction and use of buildings, and other initiatives to facilitate the development of infrastructure, facilities and environments that will benefit the community.

Existing Legislation Affected or Repealed

The proposed legislation repeals the current Development Act 1993 and makes related amendments to the following legislation:

  • Character Preservation (Barossa Valley) Act 2012
  • Character Preservation (McLaren Vale) Act 2012
  • Environment, Resources and Development Court Act 1993
  • Liquor Licensing Act 1997
  • Local Government Act 1999
  • Public Sector Act 2009 and
  • Urban Renewal Act 1995.

Major Reform not Just an Overhaul

In his second reading speech, the Planning Minister indicated the proposed legislation's importance, its long term consequences and the scope of the changes effected by it, stating that:

"The impact of today's planning decisions will either bless or burden future generations. This Bill will shape the course of South Australia's development for decades to come. Our city and regions must be the best places to live, work, study and invest. Others should regard our state as a destination of choice. A great planning system is at the core of this vision. Reforming our planning system is one of the most important and enduring things we can do in this parliamentary term. This is truly a chance to lay down a long-term vision, way beyond the narrow constraints of the normal four-year political cycle."

The Planning Minister indicated that the Bill embraces the recommendations of the Expert Panel on Planning Reform which the Government received earlier in the year and responded to on 25 March 2015. That report made 22 recommendations, most of which the Planning Minister says the SA Government has either embraced or intends to embrace and implement:

"We recognised that to unlock even more potential, in our capital and across the State, tweaks and tinkering won't be enough. This State needed a comprehensive rethink of our planning system and its role as an agent to grow South Australia. We gave the Expert Panel on Planning Reform, which led this process at arm's length, a mandate to examine every aspect of our planning system."

The Proposed changes are indicated to result from the Expert Panel's meetings with over 2,500 people representing industry, local government, professional and community groups:

". . . engaged in a mature and open-minded way with the Panel . . . The ideas contained in the final report could not have been formed without thorough, genuine consultation. The government has embraced those ideas in the Bill we now bring before you . . ."

The Urban Boundary - Bill Goes Further than Panel Recommendations

In his second reading speech, the Planning Minister also indicated that the proposed legislation goes further than the Expert Panel's advice "in one respect". The proposed legislation is to create new protection for farmlands and environmental areas around Adelaide in the form of ". . . an environment and food production reserve . . ." an ". . . area [that] will be given appropriate priority."

This approach is said to be modeled on laws already enacted by the SA Government for areas like the Barossa Valley and McLaren Vale which the Planning Minister says give parliament a role in any change which ". . . may adversely impact upon these important natural assets".

Environment and Food Production Areas

Thus the PDI Bill will provide the Minister with the power to establish certain areas as "environment and food production areas" within Greater Adelaide so as to ensure that areas of rural, landscape or environmental significance are protected from urban and/or residential encroachment.

The proposed legislation will require development within one of these areas that involves a division of land creating one or more additional allotments to be restricted in the following way:

  • Development authorisation must not be granted for a proposed development that will create additional allotments to be used for residential development;
  • Development authorisation cannot be granted for a proposed development that involves a division of land that would create one or more additional allotments unless the State Planning Commission concurs with the granting of the authorisation;
  • If the Commission is the relevant decision-making authority, then the Commission cannot grant authorisation to a proposed development that involves a division of land that would create one or more additional allotments unless the relevant local Council concurs in the granting of the authorisation;
  • A development authorisation for a division of land that would create one or more additional allotments will be taken to be subject to the condition that the allotments created will not be used for residential development; and
  • The refusal to grant development authorisation (or to concur in a grant of authorisation) cannot be appealed.

Environment and food production areas, may be varied or abolished by the Planning Minister but the Minister may only do so if the proposal is approved by a resolution passed by both Houses of the SA Parliament.

As law firm Finlaysons points out in one of its recent alerts:

"At this stage it is not clear which areas will be declared to be environment and food production areas or how the boundaries of such areas will be determined by the Minister. The Minister is not required to obtain advice or undertake any public consultation before making the declarations . . . The proposed provisions will empower the Minister to set an effective 'Urban Boundary' around Adelaide that will prevent greenfield residential development in yet to be determined areas, at least in the short term. Future changes to this Urban Boundary will require bipartisan support."

What Next

As the proposed legislation is  large, with many matters to be agreed on in Parliament, it is expected to take a while for this legislation to find its way through the SA Parliament and, as the Minister indicated in his second reading speech, even when enacted, the Bill is expected to come into to operation in stages over a period of years.

"Our expectation is that this comprehensive suite of reforms to the planning system will need several years to fully implement."

It should also be noted that complimentary legislation to effect consequential amendments across the SA statute book will also be introduced:

"It [the current Bill] does not include the consequential amendments that will be necessary across the statute books to commence the Bill; nor does it address all the reforms the government agreed it would enact when we issued our response to the Expert Panel's report in March. . . . It is the government's intention, that once parliament has considered this Bill, a further Bill dealing with consequential amendments, transitional arrangements and related implementation measures will be brought to parliament in the new year."

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