What local government needs to know about the latest amendment regulations under the Planning, Development and Infrastructure Act 2016 (PDI Act)

On 26 May 2023 the Governor gazetted two sets of amendment regulations:

• Planning, Development and Infrastructure (General) (Miscellaneous) Amendment Regulations 2023 - amending the Planning, Development and Infrastructure (General) Regulations 2017; and
• Planning, Development and Infrastructure (Accredited Professionals) (Miscellaneous) Amendment Regulations 2023 - amending the Planning, Development and Infrastructure (Accredited Professionals ) Regulations 2019

Both sets of regulations became operational on 26 May 2023 and have an impact upon local government.

This article highlights the principal amendments of interest for local government.

Planning, Development and Infrastructure (General) (Miscellaneous) Amendment Regulations 2023

1. VARIATION OF AUTHORISATION

Regulation 65 has been amended so that:

1.1 The relevant authority for an application to vary a condition of a development authorisation previously given under the PDI Act will be the relevant authority that previously granted the development authorisation. What has not been expressly catered for is where the relevant authority who previously granted the development authorisation was a “council” (under the Development Act 1993), or a “Council Assessment Panel” which has been superseded by a “Regional Assessment Panel”.

1.2 The State Planning Commission (Commission) is no longer the relevant authority for an application to vary a condition on a development authorisation previously granted by the Commission if relating to building work and a certificate of occupancy has been issued. Instead, the relevant authority will be the:

1.2.1 assessment manager of the assessment panel (for the variation to any planning consent condition only); and

1.2.2 the council in any other case.

1.3 If an accredited professional would be the relevant authority for an application to vary a condition of a development authorisation previously granted by the accredited professional, but it is unable to act, then the relevant authority will instead be the:

1.3.1 assessment manager of the assessment panel (for the variation to any planning consent condition only); and

1.3.2 the council in any other case.

Delegations will need to be updated to reflect these amendments.

2. ASSESSMENT REQUIREMENTS – WATER & SEWERAGE

Regulation 79 has been amended to expand the scope of entities that may specify water supply and sewerage service requirements in the assessment of land divisions under section 102(1)(c)(iii) and section 102(1)(d)(vii) of the PDI Act. This was previously restricted to the South Australian Water Corporation, but now includes other water industry entities under the Water Industry Act 2012 (which includes local governments in some instances).

Councils who are, or are related to, such water industry entities may want to seek advice on delegations regarding this amendment to suit their particular circumstances.

3. ASSESSMENT MANAGER REVIEWS TO THE ASSESSMENT PANEL

Regulation 116 has been amended to afford an applicant for a review of a decision of the assessment manager the opportunity to provide the assessment panel with its submissions relating the review. Further, (if that assessment panel determines to hold a hearing) it must provide the applicant with written notice of the date of the hearing and the opportunity to appear and make submissions at the hearing in person. It is unclear whether it was intended that any meeting of the assessment panel automatically comprises such a “hearing” per se. However, assessment panels will now need to review their Assessment Manager Review Policy/Procedure (or Assessment Panel Meeting Procedures if there is no separation of documentation) for consistency with this amendment.

4. EXCLUSIONS FROM THE DEFINITION OF “DEVELOPMENT”

Schedule 4 has been amended to include:

4.1 Council works - clause 2(4)(c) – the undertaking of temporary development by or on behalf of a council which is required in an emergency situation in order to support public health services; and

4.2 Sundry minor operations - clause 4(1)(k)(i) – the installation of a screen to 1 or more sides of a structure for the purposes of privacy if that screen comprises a plastic blind that is capable of being opened and closed (and which also satisfies the relevant length and height controls in clause 4(1)(k)(ii)).

5. RELEVANT AUTHORITY – COMMISSION

5.1 New Schedule 6, clause 1(3) provides that the Commission will be the relevant authority for a development straddling two council areas except where a regional assessment panel has been constituted for those councils.

5.2 New Schedule 6, clause 4B provides that the Commission will be the relevant authority for buildings exceeding four storeys in height in the Design Overlay of the Planning and Design Code within the Corporation of the Town of Walkerville.

6. APPLICATION INFORMATION FOR STRATA TITLE & COMMUNITY TITLE

6.1 New Schedule 8, clause 8A requires an applicant to provide the following application documentation for lodgement of an application for development relating to a unit (Strata Titles Act 1988) or strata lot (Community Titles Act 1996) within a strata scheme (other than where the units/lots are non-residential purposes):

6.1.1 evidence that the applicant has given written notice of the application to the strata corporation or community corporation (as applicable); and

6.1.2 evidence that the strata corporation or community corporation (as applicable) has authorised the carrying out of the prescribed work under:

6.1.2.1 section 29 of the Strata Titles Act 1988

6.1.2.2 section 102 of the Community Titles Act 1996

Planning, Development and Infrastructure (Accredited Professionals) (Miscellaneous) Amendment Regulations 2023

1. ACCREDITED PROFESSIONALS

1.1 Regulation 6 has been amended to include within accredited professional – planning level 1: the functions, powers or duties of accredited professional – planning levels 2, 3 and 4.

1.2 Regulation 8 has been amended to include within accredited professional – planning level 3: the functions, powers or duties of accredited professional – planning level 2.

1.3 New regulation 19A enables an accredited professional to seek an extension of accreditation in limited circumstances up to a period of three months.

1.4 Regulation 25 has been amended to enable an accredited professional to count CPD units towards multiple accreditations held by them under the scheme.

1.5 Regulations 30(2) has been amended to enable an officer or employee of a council to act as an accredited professional in relation to a development in which it:

1.5.1 has a direct or indirect pecuniary interest in any aspect of the development or any body associated with any aspect of the development; or

1.5.2 is employed by any person or body associated with any aspect of the development.

1.6 The following changes to CPD requirements have been made in Schedule 1:

1.6.1 Planning (levels 1, 3, 4 and surveyors) – the “ethics in planning” component has been reduced to 1 unit

1.6.2 Planning (level 2) – the overall CPD points required has been reduced to 4 CPD points

1.6.3 Planning (levels 3, 4 and surveyors) – the “performance based planning or design component” has been removed

1.6.4 Building (levels 1, 2 and 3) - the “ethics in building” component has been reduced to 1 unit

1.6.5 Building (level 4) - the “decision making in development assessment” component has been removed.

If you would like assistance in understanding the amendments or how these should be accommodated, please contact Rebecca McAulay on 8210 1278 or rmcaulay@normans.com.au.