Full steam ahead for planning reforms in South Australia

Phase 2 Councils have been advised by the Government to continue preparing for a Code commencement date of 1 July 2020, and Phase 3 councils September 2020.

No legislated deadline for planning reforms

On 2 April 2020, Schedule 8 of the Planning, Development and Infrastructure Act 2016 (PDI Act) was amended to remove the 1 July deadline for the Planning and Design Code to be fully operational throughout the State.

This 1 July deadline was not replaced with a new deadline, but with the flexibility of a future “designated day”. The “designated day” is not yet a specific date, and there is no time frame within which it must be set. The “designated day” will not be set until it is proclaimed by notice in the Gazette. There are no limits as to how far into the future this may be. This means that, currently, there is no deadline for the delivery of development assessment planning reform in South Australia.

However, it remains the Government’s intention that Phase 2 of the Code will commence operation on 1 July 2020 and Phase 3 in September 2020.

We understand that it is not currently proposed that planning reforms will be further delayed in light of the Covid-19 pandemic, and the resourcing and other challenges currently faced by councils in responding to it.

Phase 2 – What we have heard report released

In anticipation of a 1 July 2020 commencement date for Phase 2 councils, on 24 March, the State Planning Commission released a “What We Have Heard” Report, summarising the community consultation submissions it received on Phase 2 of the draft Code, and setting out the amendments to the draft Code that it will be recommending to the Minister in light of those submissions.

Many of the proposed amendments appear to have stemmed from submissions made by the Local Government sector, which was well represented in submissions lodged.

Some key recommended amendments to Phase 2 of the Code include:

Definitions:

• Amending a number of land use definitions, including detached, semi-detached and row dwellings. The nature of the proposed amendments are not included in the Report. Many councils advocated for amendments to these three dwelling definitions (together with the definition of “site”) during the initial drafting of the Code.

Public notification

• Reversing the operation of public notification tables. In the current Phase 2 (and 3) drafts of the Code, these tables provide that all development is excluded from public notification except for specific listed kinds of development and development in specific locations. If reversed, these tables would instead list specific kinds of developments which are excluded from public notification, such that all other development would be subject to public notification. While this amendment would address the complaint that almost all development proposed adjacent to a zone boundary would have required notification in the draft Code, it has the potential to significantly increase the amount of applications which will require public notification. This, in turn, will have implications for the amount of performance assessed development applications for which a Panel, rather than an Assessment Manager, will be the relevant authority.
• Specifying that development that is minor in nature in the opinion of the relevant authority does not require public notification.

Referrals

• Removing the site contamination referral in the Code until consultation on the draft site contamination practice direction is completed. It may be that consequential amendments are required to ensure that adequate provision is made for referrals to the EPA in circumstances of potential site contamination until the practice direction is finalised.

Code Policy

• New policy relating to on-site wastewater management for land that does not have mains connection or the possibility of connection to a CMWS scheme. Adjustments relating to on-site wastewater management are also recommended in relation to land division policy.
• A new Heritage Adjacency Overlay and amendments to the spatial operation of the State Heritage Place and Local Heritage Place Overlays such that those overlays will apply only to State and Local Heritage Places, and not to adjacent land. The policy in the Heritage Adjacency Overlay will provide less strict controls, while still ensuring the impact on a State or Local Heritage Place of a proposed development on an adjacent site forms part of the assessment.
• A new Gateway Overlay to support high standards of visual amenity along prominent entrances to towns and other high value locations.
• Ongoing collaboration to refine the content of the Hazards (Flooding) Overlay and to introduce additional flood mapping across the State.
• Remove the Sloping Lands Overlay and replace it with policy in the General section of the Code to guide development on sloping land.

Planning Regions proclaimed

The final recent development in relation to planning reforms in South Australia was the Governor’s proclamation on 19 March 2020 of the division of the State into seven planning regions (pursuant to Section 5(1) of the PDI Act). The proclaimed regions are Greater Adelaide; Eyre and Western; Far North; Kangaroo Island; Limestone Coast; Murray Mallee; and Yorke Peninsula and Mid North.

Regional plans in relation to these regions must now be completed within 3 years of this proclamation. The Commission will be responsible for the preparation of these plans, unless a joint planning board has been constituted in relation to an area of the State, in which case the JBP will be prepare the plan in relation to its area (which may be part or the whole of a planning region).

Training opportunities

In partnership with the LGA, Norman Waterhouse will be offering targeted training on key areas of the PDI Act and Code ensure all regional councils are thoroughly prepared for this transition. To register your interest in such training, please contact Peter Psaltis at Norman Waterhouse on 8210 1297 or Stephen Smith at the LGA on 0409 286 734