Amending Designated Instruments – Important updates to Practice Direction 2

As part of a series of recent releases from the State Planning Commission (Commission) following the State-wide launch of the new planning regime, an updated version of Practice Direction 2 – Preparation and Amendment of Designated Instruments – Version 3 (Practice Direction 2) has been published on the SA Planning Portal.

The recent changes comprise the inclusion of more detailed requirements for the preparation of engagement plans and engagement reports, and alterations to the investigation and reporting requirements for the initiation of amendments to the Planning and Design Code (the Code).

The new version of Practice Direction 2 is available here.

Overview

Practice Direction 2 provides guidance and administrative requirements for any designated entity seeking to amend a designated instrument, in addition to the requirements of section 73 of the Planning, Development and Infrastructure Act 2016 (the Act).

Pursuant to section 70 of the Act, designated instruments include:

• state planning policies;
• regional plans;
• the Code; and
• design standards.

A designated entity refers to any person or body with the power to initiate an amendment to a designated instrument under section 73 of the Act.

Councils, joint planning boards, and individuals can all initiate amendments to the Code with the approval of the Minister for Planning and Local Government (the Minister) provided that they comply with the requirements of the Act, the Community Engagement Charter and Practice Direction 2.

The new and updated requirements of Practice Direction 2 reinforce the existing provisions of the Act and the Community Engagement Charter. Many of the previous clauses are unaltered or only have minor formatting adjustments. This article focusses only on the changes most relevant to councils.

Engagement Plans – Clause 5

Clause 5 now includes further requirements for the preparation of an engagement plan prior to consultation in accordance with the Community Engagement Charter.

The most significant addition is the inclusion of mandatory bodies that must be consulted under clause 5(1)(b). These are any persons or bodies:

(i) required to be consulted with under a condition imposed by the Minister under section 73(5) of the Act;

(ii) specified by the Commission under section 73(6)(e) of the Act; and

(iii) who must be consulted with under the Community Engagement Charter.

In addition, clause 5(3) now specifies that an engagement plan for a proposed Code amendment does not need to be approved by the Commission or the Minister unless a condition has been imposed requiring this on the relevant approval to commence.

Engagement Reports – Clause 6

Clause 6 is now more prescriptive in terms of the post-consultation requirements, particularly regarding the accompanying material for the engagement report.

Clause 6(1) now prescribes that the Attorney-General’s Department (the Department) must be provided with:

a) if amendments to the proposal are required –

(i) written instructions that set out any proposed changes; and/or
(ii) mapping instructions or a description of the affected area.

b) the updated draft designated instrument (incorporating any amendments); and

c) a final engagement report.

The mandatory requirements for the engagement report are unchanged from the previous version.

Specific procedures for Code Amendments

Clause 7 contains more detailed requirements for a proposal to initiate a Code amendment. In particular, sub-clause (1) now prescribes that a proposal to initiate a Code amendment must be supported by details of consultation, consisting of:

• matters raised by the relevant council and/or a relevant joint planning board on the proposal to initiate;
• information regarding any consultation that has already occurred with respect to the proposed Code amendment; and
• details of further consultation proposed to be undertaken with respect to the proposed Code amendment.

Additional details of investigations must also be included, consisting of:

• information regarding any investigations which have already been undertaken with respect to the proposed Code amendment;
• an outline of any further investigations that will be undertaken to support the proposed Code amendment;
• details of any infrastructure required to support development arising through the proposed Code amendment and how the infrastructure will be provided; and
• details of any infrastructure agreement (or agreements) or infrastructure scheme which will need to be established or entered into in connection with the proposed Code amendment.

Clause 8(1) also sets out additional pre-consultation requirements that reflect the general requirements of clause 5, but with the inclusion of:

• additional investigation requirements;
• further details for written and mapping instructions for the proposed amendment;
• a copy of the draft amendment;
• written instructions for consultation via the SA Planning Portal; and
• a copy of the engagement plan for publication on the SA Planning Portal.

Clause 8(2) has also been replaced by a new provision to provide the Department with a copy of an amended engagement plan (if it is amended at any point during consultation).

Heritage Places and Significant Trees

The requirements for proposed Code amendments to designate a new local heritage place are now more prescriptive.

In accordance with clause 7(3), to designate a place as a local heritage place, the proponent must provide a report which:

a) includes a heritage datasheet for each proposed local heritage place, including:

(i) all relevant property details and descriptions (including images);
(ii) a historical background and thematic analysis;
(iii) a statement of heritage value;
(iv) an assessment against the local heritage criteria (available here); and
(v) the extent of the listing (including any exclusions).

b) includes an analysis of historic themes of importance to the area;

c) is prepared by a heritage architect, historian or person with similar qualifications, skills, or experience; and

d) is otherwise prepared in accordance with any guidelines prepared and published by the Commission under section 67(2)(c) of the Act.

Similar but less onerous requirements apply for designation of a tree or trees as a significant tree(s). In accordance with clause 7(4), a proponent must provide a report which:

a) includes relevant details and descriptions of the tree (or stand of trees) (including images as necessary);

b) includes an assessment of the tree (or stand of trees) against the significant tree criteria (see section 68(1) of the Act); and

c) is prepared by an urban planner, arborist or a person with qualifications, skills or experience relevant to the assessment in the report.

Implications for Local Government

Councils should be aware of the additional requirements for consultation now mandated by Practice Direction 2 when considering whether to initiate amendments to the Code or other designated instruments. The Commission has now released a “toolkit” containing a range of additional guidance and pro forma materials to assist in preparing Code amendments. The Code Amendment toolkit is available here.

Councils should also note that the changes to Practice Direction 2 both introduce new delegable powers and modify those that were previously delegated under Instrument A (powers of a council generally). An updated version of the relevant template delegation instrument will be made available in due course and councils are encouraged to update their delegations accordingly.

For more specific information on any of the material contained in this article please contact Rebecca McAulay on +61 8 8210 1278 or rmcaulay@normans.com.au, or Nicholas Munday on +61 8 8217 1381 or nmunday@normans.com.au.