Covid-19 Update - Amendments to non-complying and Crown development under the Development Act 1993

On 14 May 2020, the Covid-19 Emergency Response (Further Measures) Amendment Act 2020 (Covid-19 Amendment Act) was passed by both Houses of Parliament.

This article explains the changes the Covid-19 Amendment Act has made to the Development Act 1993 (D Act) and Planning, Development and Infrastructure Act 2016 (PDI Act).

Non-complying development

The Covid-19 Amendment Act removes the need for concurrence to be obtained before a relevant authority may grant Development Plan consent to a non-complying application under the D Act. It achieves this by deleting sub-sections (3) and (3a) from Section 35 of the D Act.

A consequential amendment has also been made to Section 35(4)(a) to delete the reference to concurrence as a ground of appeal.

The effect of this amendment is that:

• Where a council is the relevant authority for an application made following the operation of this amendment, it will not require the concurrence of SCAP before granting Development Plan consent to a non-complying application; and
• Where the Commission is the relevant authority, it will not require the concurrence of the Minister or a council before granting consent to a non-complying application.

These amendments to Section 35 of the D Act do not expire. Absent further legislative change, they will remain deleted from the D Act until its repeal.

Crown development

The Covid-19 Amendment Act has also amended the provisions in both the D Act and the PDI Act relating to Crown development (Sections 49 and 131 respectively). These amendments:

• reduce the time within which a council may provide a report to SCAP on an application lodged under Section 49/Section 131 from 2 months to 15 business days (by amendment to Sections 49(6) and 131(8)); and
• increase the threshold cost of construction work for which an application must undergo public notification under Section 49(7d) of the D Act from $4 million to $10 million. The equivalent threshold in the PDI Act is already set at $10 million, so no amendment has been made to that provision.

These amendments will expire on the earlier of 9 October 2020; the day on which all relevant declarations relating to the outbreak of Covid-19 within South Australia have ceased; or a date determined by the Minister in his discretion.

The original Bill, as passed by the Lower House, proposed further amendments, that would have entirely removed councils’ ability to provide comment on Crown development under Sections 49 and 131. However, this scheme was rejected in the Upper House, and pared back to its final form, where council notification and comment is to continue, but within a reduced timeframe of 15 business days (until the expiration of these amendments).

Why have these changes been made?

The Government’s stated rationale for these amendments to the non-complying and Crown development provisions was to stimulate economic development and increase workforce participation during the Covid-19 pandemic by creating efficiencies and “streamlining” the development assessment process for these kinds of development.

For more specific information on any of the material contained in this alert please contact Gavin Leydon on gleydon@normans.com.au or 8210 1225, Peter Psaltis on ppsaltis@normans.com.au or 8210 1297 or Joanna Clare on jclare@normans.com.au or 8217 1368.