Planning Reform Update – What’s new?

With just one month to go before Phase 2 councils ‘go live’, recent weeks have seen the release of many key documents, including:

• the final version of the Planning and Design Code (Code) for Phase 2 councils;
• new and amended practice directions;
• variations to the Planning, Development and Infrastructure (General) Regulations 2017 (General Regs), the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 (Swimming Pool Regs); and the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019 (Accredited Professional Regs);
• a draft local design review scheme for consultation; and
• new standard forms.

This article provides an overview of these documents and identifies their key impacts on councils as we continue to prepare for the implementation of the Planning, Development and Infrastructure Act 2016 (PDI Act) and its regulations. All of the documents discussed in this article are available on either the SA Planning Portal (Portal) or in the Government Gazette (18 June 2020).

The Code:

The first version of the Code (Phase 2) has been published (29 June 2020). Numerous amendments have been made to this published version from the consultation draft. Some of the more significant amendments include:

• Public notification: The operation of public notification tables has been “reversed” from the consultation draft. The Procedural Matters tables in the consultation draft provided that all development was excluded from public notification except for listed kinds of development and development in specific locations. These tables now reverse that position, providing that “the following classes of performance assessed development are excluded from notification””. This means that all performance assessed development types not listed in the table will be notified. This amendment addresses a common concern from councils and industry bodies that almost all development proposed adjacent a zone boundary would have required notification. However, it has the potential for more kinds of development to require notification (and, consequently, for assessment panels to be the relevant authority for more development applications), depending on the number of development types listed.
  
  A new exclusion from the requirement to undertake notification has been included in procedural matters tables throughout the Code for “minor” development: a kind of development which, in the opinion of the relevant authority (i.e. the panel), is “of a minor nature only and will not unreasonably impact on the owners or occupiers of land in the locality of the site of the development”. This exclusion was previously contained in Practice Direction 3.
  

• Site exclusivity: The definitions of each of “detached dwelling”, “semi-detached dwelling” and “row dwelling” have been amended to replace the words “site that is held exclusively with that dwelling” with the words “dwelling on its own site”. We understand the intent of this change is to oust the position, created in cases such as Port Adelaide Enfield City Council v Moseley [2008] SASC 88 and Paior v City of Marion (No 3) [2014] SAERDC 42 that a site is not held exclusively with a dwelling until a land division approval has not only been granted, but perfected through the lodgement of the plan of division at the Lands Titles Office. Our preliminary view is that this changed language of “own site” may not be sufficient to achieve this.
• Policy:
  • A number of policies, particularly under the people and neighbourhood umbrella, have changed. This includes by removal, renaming, replacement, or the combining of zones, subzones and general modules.
  • A new Heritage Adjacency Overlay has been introduced, with consequential 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 also to adjacent land. The policy in the Heritage Adjacency Overlay will provide less strict controls, with the focus being on maintaining the heritage and cultural values of adjacent sites, and ensuring the impact on a State or Local Heritage Place of a proposed development on an adjacent site forms part of the assessment.
  • Additional policy relating to site areas for land that does not have mains sewer connection or connection to a CMWS scheme, and will require on-site wastewater management.
  • The removal of the Sloping Lands Overlay and its replacement with policy in the General section of the Code to guide development on sloping land.
  • A number of inconsistencies and inaccuracies have been amended.

The State Planning Commission (Commission) has also released a “What We Have Heard” report following the close of public consultation on Phase 3 of the Code. However, the document is not expressed in terms of which submissions are likely to be adopted by the Commission. Together with other interested stakeholders, we await further direction from the Department and the Commission as to the outcomes of the Phase 3 consultation, and possible amendments to the Code.

Practice directions:

• A new version (version 2) of Practice Direction 3 – Notification of Performance Assessed Development Applications 2019 (PD 3) has been released. The amendments in version 2 include:
  • The removal of the ability for the relevant authority to determine not to notify a performance assessed development due to it being, in the relevant authority’s opinion, minor in nature (and not unreasonably impacting on the owners or occupiers of land in the locality of the site of the development). This power has not been removed altogether, but instead moved into the Code.
  • Clarification that the council in whose area a development is proposed will determine the cost to an applicant of requesting the relevant authority to place the necessary sign(s) on the land. This cost must be not more than the relevant authority’s “reasonable” costs of giving the notice (clause 6(b)).
  • Whomever places the sign on the land will no longer be required to take a photo of the sign on the final day of the notice period (clause 12).

• New Practice Direction 10 – Staged occupation of multi-storey buildings 2020 (PD 10) has been released. It closely follows the current Minister’s Specification 83, with slight changes, including new object and interpretation clauses, changes to terminology, such as replacing “must be” with “is/are” and Clause 5(2) now specifically referring to a council or a building certifier agreeing to partial occupancy, and other minor changes to the requirements.
  
• New Practice Direction 11– Deemed Planning Consent Standard Conditions 2020 (PD 11) has been released. PD 11 sets out the conditions which will apply to a development approved via a deemed planning consent, if the relevant authority does not issue its own approval and conditions (see Section 125 of the PDI Act). Due to the difficult nature of drafting conditions to ‘cover the field’ for all possible development types, it is likely that the conditions in this practice direction may prove inadequate in some circumstances. Enforceability may also prove difficult down the track.
  
  If relevant authorities do find themselves in receipt of a deemed consent notice which they do not intend to appeal, it will be important that that they (or their delegate) turn their minds to the possible benefits of issuing their own development authorisation, subject to their own conditions, rather than allow the deemed planning consent, subject to the conditions in PD 11, to stand. Where the relevant authority is an assessment panel, it will be critical that the power in Section 125(4)(b) of the PDI Act to issue such an approval is delegated, as the relevant authority has only 10 business days from receipt of the deemed consent notice to do so.
  
• New Practice Direction 12 – Conditions 2020 (PD 12) has been released. PD 12 provides a set of mandatory conditions which a relevant authority must impose on specific kinds of development being approved including regulated trees, division of land in Environment & Food Production Areas and fortifications.
  
  PD 12 also includes a list of what conditions imposed under the PDI Act must not do, including the fettering statutory powers by binding future decisions of a relevant authority; requiring substantial variation by altering the fundamental nature of the application; going beyond the scope of what is being approved; or being vague and uncertain.
  
  This list of prohibited conditions does not impose any new obligations on relevant authorities. Rather, it is consistent with the current ‘rules’ around the imposition of conditions which have been developed through case law in the Courts. Relevant authorities will not fall into error if they continue to follow those common law ‘rules’.
  
  However, the release of PD 12 is a timely reminder to councils that all conditions imposed under the PDI Act must relate to a relevant provision in the Code, rather than their Development Plan. Where resourcing permits, we recommend councils review their standard conditions of Development Plan consent to ensure consistency against the Code, and to amend them where necessary to achieve this.

Regulations:

Regulations which vary the Swimming Pool Regs, the General Regs and the Accredited Professional Regs have been Gazetted. Only one change has been made to the Swimming Pool Regs, which requires all designated safety features to be installed before a pool is filled with water. The changes to the Accredited Professional Regs relate to indemnifying assessment managers and members of assessment panels, while the changes to the General Regs are numerous and varied.

Swimming Pool Regs:

A variation has been made to Regulation 7 of the Swimming Pool Regs to ensure all designated safety features are completed before swimming pools are filled with water. Previously, a time period of 2 months was allowed from the completion of the construction of a swimming pool for the completion of construction of all relevant designated safety features. The variation has amended this requirement to be either before the swimming pool is filled with water, or within 2 months of the completion of construction of the swimming pool, whichever comes first.

Indemnifying Assessment Managers and Panel members:

Variations have been made to both the General Regs (new Regulations 11A and 11B) and the Accredited Professional Regs (new Sub-regulation 17(2a)). These amendments create a scheme through which Assessment Managers and Assessment Panel members are indemnified by councils (for CAPs and RAPs) or joint planning boards (JPBs) (for Panels appointed by JPBs) in relation to claims made against them arising out of the performance of their roles.

The indemnity will operate as follows:

• Councils and JPBs must have “arrangements in place” to indemnify their Panel members and Assessment Manager in respect of claims arising out of the performance of their role;
• membership of the Mutual Liability Scheme will constitute an acceptable “arrangement”; and
• Panel members and Assessment Managers are granted rights of indemnity against the relevant council or JPB (as the case may be) in respect of a claim made against them arising out of the performance of their role. In the case of a RAP, liability will rest with the council for the area to which the claim relates.
• Panel members and Assessment Managers will also be required to sign notices of appointment (or reappointment) which will be in a form determined by the Chief Executive of DPTI.

General Regs:

The amendments to the General Regs include the following:

• Regulation 3A – the ‘Covid-19 toilet paper amendment’. It provides that a person who operates a shop used primarily for the sale of foodstuffs by retail will not commit an offence under Section 215(4) of the PDI Act (which is the offence of contravening or failing to comply with a condition of a development authorisation) by opening the shop, or loading or unloading goods at the shop at any time (which may otherwise be a contravention of a condition of a development authorisation).
  
• Regulation 22 has been amended to provide additional circumstances in which an Assessment Manager may act as a relevant authority, being:
  • Making a decision in accordance with Practice Direction 3 around the giving of notice; and
  • Determining whether a development is excluded from requiring notification in the Code (i.e. because it is “minor in nature”).

• Regulation 57(4)(b) now requires a relevant authority to ensure that the notice provided via the Portal of a grant of development authorisation includes an endorsed set of approved plans and other relevant information.
  
• Regulation 65(3) now specifically states that a development authorisation relating to the division of land cannot be varied after certificates of title have been issued.
  
• Regulation 103(6a) and (6b) prohibit the issuing of a certificate of occupancy by a relevant authority, in circumstances where the council has determined that the building work will be inspected by an authorised officer (and has provided notice to this effect), until that inspection has been carried out and any required building work or other action has been undertaken.
  
• Regulation 104(3) provides additional clarity and requirements around Statements of Compliance. Sub-regulation (3) specifies the statement must be completed by the licensed building work contractor or, if none exists, a registered building work supervisor or building certifier. It also requires the Statement to be provided via the Portal.
• Prescribed qualifications to issue an emergency order (under Section 155 of the PDI Act) are identified in new sub-regulation 112(3) as the qualifications that apply for the purpose of gaining accreditation as an accredited professional – building Level 1 or 2.
• The purposes for which the Planning and Development Fund may be applied in Regulation 119 have been expanded with the inclusion of establishing projects associated with the implementation of the PDI Act, including the Portal, the SA planning database, the online atlas & search facility, the online delivery of planning services, and the Code.
  
• Similar amendments to those made to the D Regs in March to assist in the rebuilding of bushfire affected areas (Development (Bushfire Recovery) Variation Regulations 2020) have been included in the PDI Regs in Schedule 4 (exclusions from definition of development) and Schedule 7 (complying building work).
  
• Amendments to Schedule 6 which will lead to the SA Planning Commission being the relevant authority in additional circumstances, including a broader range of applications made by the SA Housing Trust (alone or with other persons or bodies identified in the Schedule), and for all development applications for the purposes of tourist accommodation in a reserve constituted under the National Parks and Wildlife Act 1972.
  
• Schedule 8 now prescribes minimum document and information requirements for all development applications for planning consent involving building work, not only for certain types of development. However, the caveat in Regulation 30(2) that an applicant must not be required to comply with a requirement under Schedule 8 unless it is directly relevant to the application remains. Amendments to the precise information requirements in Clause 2 of Schedule 8 have also been made.
  
• Schedule 9 (referrals) has been amended to remove development of a kind listed in the table but which is classified as deemed-to-satisfy development from the requirement to refer the application to the body prescribed in the table.
  
• The table in Schedule 9 has also been divided into two Parts – Part A: referrals for direction; and Part B: referrals for advice. A power of direction may now be either a ‘full’ power of direction (i.e. direction to refuse or to impose conditions), or a ‘partial’ power to direct the imposition of conditions only. The content of the table itself has also been amended.

Local Design Review:

A draft scheme for local design review has been released for consultation. It will be optional for councils to make local design review available in their areas.

Local design review will operate pursuant to Section 121 of the PDI Act, which provides that a person who is considering undertaking development of a class prescribed by the Code may apply to a design panel for advice prior to lodging a development application. No classes of development are yet prescribed in the Code. The consultation materials state that for those councils who choose to participate in the scheme, the Commission will work with them to specify eligible classes of development. The inference we make is that for those councils who choose to not participate in the scheme, no classes of development will be specified within their areas, rendering local design review unavailable.

For councils which choose to make local design review available, they can either;

• Register as a Local Design Review Administrator (LDRA), either alone or together with other councils; or
• Rely on Independent Design Review Administrators (IDRA) which can be registered by individuals, bodies or entities (such as professional organisations).

The CE of DPTI will accept registrations, at the CE’s discretion. Registration will require payment of a prescribed fee.

Once established, LDRAs and IDRAs (known as “designated entities”) will establish panel member pools, via a formal recruitment process, made up of people with tertiary qualifications in a relevant field, such as architecture, ecologically sustainable design, landscape architecture or urban design. They must also have 10 years of professional experience in their field and be recognised as highly experienced.

Process

Upon receipt of a valid application for design review, which includes payment of a prescribed fee, for a participating council which has established a LDRA, the LDRA will establish a “suitable” design review panel. Where no LDRA exists, the council with whom the application was lodged will forward it to an IDRA (of the council’s choosing), for the IDRA to establish a panel. The LDRA or IDRA will be responsible for coordinating the panel’s meeting, and providing a design panel briefing to it.

The panel may constitute one person only, or multiple people. All panels will have a chair. If the proposed development involves building work, the chair must be a registered architect.

The panel will meet and consider the proposal (together with stakeholders). The chair will then provide design advice to the applicant. More than one session may be held, and iterative advices may be provided for each occasion. Should the applicant then proceed to lodge a development application, it must be accompanied by all design advice provided.

Consultation on the draft scheme is open until 21 August 2020. We encourage all councils to carefully review the scheme during this consultation period.

Template Forms & Certificates:

The following standard forms & certificates have been released. These are no longer prescribed in the regulations. This provides an easier process for amendment, should change be necessary from time to time

• Schedule of ESPs: The Schedule of ESPs closely follows the current Schedule 16 of the Development Regulations 2008 (D Regs), with some amendments, including additional tables for project details, etc; additional identity requirements; the splitting of the main table from 2 to 3 columns, with the new columns headed:
  

New guidance notes for completing the table are also included.

• Certificate of Occupancy: This Statement closely follows the current Statement in Schedule 19 of the D Regs, with some amendments, including additional tables for project details; tick boxes relating to various matters; different headings to the main table; additional contact details; and reinforcement of the statutory requirements and penalties.
  
• Statement of Compliance: This Statement closely follows the current Statement in Schedule 19A of the D Regs, with some amendments, including in Part A: the addition of tick boxes under Item 4; a table for description of variations made during construction; and additional space to identify uncompleted building work. Part B includes a new item 3 relating to uncompleted building work. Both parts also require additional contact details.

For more specific information on any of the material contained in this article please contact Joanna Clare on +61 8 8217 1368 or jclare@normans.com.au.