Environment & Planning – Q&A on development assessment under the PDI Act and Regulations
Over the past 2 months, the Environment and Planning team have been conducting its “PDI Act - Essential Development Assessment Workshop”.
This workshop equips council officers with a practical knowledge of the changes to development assessment under the Planning, Development and Infrastructure Act 2016 (PDI Act) and Planning, Development and Infrastructure (General) Regulations 2017 (Regulations). So far, it has taken us from Wattle Range in the South East to Hewitt in the North, with numerous stops in between.
Each session has generated much discussion about how to best manage changes to development assessment under the PDI Act and Regulations. Below, we answer some of the hot issue questions that have arisen at these workshops.
What happens when the Assessment Manager goes on holidays or is sick?
Under the PDI Act, the Assessment Manager will be a relevant authority in his or her own right, rather than a delegate of the Council. This has raised the question for numerous councils of what will happen when the Assessment Manager is away sick or on leave? Can decisions still be made? Will Council need to appoint another Assessment Manger for that period?
The answer is that decisions can and will continue to be made without the need to appoint another Assessment Manager (and that it would not be lawful to appoint a 2nd Assessment Manager for that period of time).
This is because an Assessment Manager is able to delegate any or all of his or her functions under the PDI Act and Regulations (see s 100 of the PDI Act). Provided the appropriate delegations to staff (or private practitioners) are in place, development assessment can continue as normal in the absence of an Assessment Manger.
How do deemed planning consents work? Are they automatic? Do they apply to private accredited professionals?
One of the hottest topics in our Workshops has been deemed planning consents.
Under Section 125 of the PDI Act, where a relevant authority fails to make a decision within the time prescribed in Regulation 53, an applicant may serve a deemed consent notice on the relevant authority. If this happens, the development application is taken to have been granted planning consent.
The first thing to be aware of is that deemed planning consents do not occur automatically. They only occur if an applicant chooses to serve a deemed consent notice on the relevant authority, which must be served either via the Portal or by registered post (Regulation 54). There is nothing preventing an applicant from continuing to work with a relevant authority after the prescribed time to make a decision has expired, or from simply choosing not to exercise his or her right to serve a deemed consent notice. However, the relevant authority will be at risk of a deemed consent notice being served after the time prescribed in Regulation 53 has expired. We are encouraging all councils to develop protocols and strategies to prevent this occurrence.
The second issue of note is that deemed consents apply to all relevant authorities. This means that deemed consent notices may be served on accredited professionals in private practice where those professionals are acting as the relevant authority for planning consent if they exceed the prescribed timeframe in Regulation 53.
What happens if planning consent is granted for some, but not all, elements of a development application? Can those elements be developed?
Under the PDI Act, where an application for planning consent involves more than one element, each element can be assessed separately, including by different relevant authorities (Section 102(7)). For example, a private accredited professional may be the relevant authority for complying elements of an application, while an Assessment Manager or Assessment Panel the relevant authority for the performance assessed elements (depending on whether those elements are publicly notified).
However, in this situation, there is still only one development application. It is this application, as a whole, which will receive development approval, or not.
Unless every element of an application has been granted a planning consent, the application, as a whole, cannot be granted development approval and an applicant cannot proceed to just develop those elements which have received planning consent (at least, not without lodging a fresh DA for those elements only).
The Council remains the relevant authority for development approval under the PDI Act (Section 99). Therefore, it will be the responsibility of the Council to ensure that where different elements of planning consent are assessed by different relevant authorities, all necessary consents are obtained before development approval is granted.
As council is no longer the relevant authority for planning and building consents, what happens to application fees?
Currently, as councils are relevant authorities for development authorisation under the Development Act 1993, development assessment fees are payable to the Council. However, as councils will no longer be a relevant authority for planning consent under the PDI Act (and may only become a relevant authority for building consent it that function is referred to it (Section 99(1)), what will happen to these fees?
The answer to this question is partially found in the Planning, Development and Infrastructure (Fees, Charges and Contributions) Regulations 2019 (Fees Regulations). Excluding for now the situation where a council is a member of a joint planning board, these Regulations provide that where the relevant authority is an Assessment Manager the relevant fees will be taken to be paid or payable to the Council (Regulations 3 and 3A).
However, where the relevant authority is an Assessment Panel, the relevant fees will be payable to the Panel (again, excluding the situation where a council is a member of a joint planning board). We consider there to be a number of potential issues with this arrangement, including councils remaining responsible for the expenses of Panels, Panels not being legal entities capable of opening bank accounts to deal with monies received, and the possibility that Panel members will not wish to take on the added responsibility of managing funds. We understand that these matters have been raised with DPTI and expect further clarification to follow.
Further information
Key features of the PDI Act and Regulations will be a central focus of our upcoming Planning, Development and Environment Masterclass at the Town Hall on 18 October 2019. The Masterclass will cover topics including understanding the Planning and Design Code, enforcement mechanisms under the PDI Act, and the role of heritage and character in the new system. Media personality and Heritage Council Chairperson Keith Conlon will also be presenting as our special guest.
We are continuing to offer our Essential Development Assessment Workshop throughout metro and regional South Australia.
For further information on this article, our upcoming Masterclass, to arrange a workshop for your council, please contact Joanna Clare on +61 8 8217 1368 or jclare@normans.com.au or Gavin Leydon on +61 08 8210 1225 or gleydon@normans.com.au.
