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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Planning, Development and Infrastructure
Bill 2015
A BILL FOR
An Act to provide for matters that are relevant to the use, development and
management of land and buildings, including by providing a planning system to
regulate development within the State, rules with respect to the design,
construction and use of buildings, and other initiatives to facilitate the
development of infrastructure, facilities and environments that will benefit the
community; to repeal the
Development
Act 1993
; to make related amendments to the
Character
Preservation (Barossa Valley) Act 2012
, the
Character
Preservation (McLaren Vale) Act 2012
, the
Environment,
Resources and Development Court Act 1993
, the
Liquor
Licensing Act 1997
, the
Local
Government Act 1999
, the
Public
Sector Act 2009
and the
Urban
Renewal Act 1995
; and for other purposes.
Contents
5Planning regions and
Greater Adelaide
7Environment and food production
areas—Greater Adelaide
8Application of Act—general
provision
11Recognition of special
legislative schemes
Part 2—Objects, planning principles
and general responsibilities
Division 1—Objects and planning
principles
Division 2—General duties and
coordination of activities
16Responsibility to coordinate
activities
Division 1—State
Planning Commission
Subdivision 1—Establishment and
constitution of Commission
19Special provision relating to constitution of
Commission
Subdivision 2—Functions and
powers
24Minister to be kept informed
25Minister to have access to
information
28Disclosure of financial
interests
Division 3—Joint
planning arrangements
Subdivision 1—Planning
agreements
Subdivision 2—Joint planning
boards
37Disclosure of financial
interests
Subdivision 3—Appointment of
administrator
41Appointment of administrator
Division 4—Practice directions and
practice guidelines
Part 4—Community
engagement and information sharing
Division 1—Community
engagement
44Community Engagement Charter
45Preparation and amendment of
charter
Division 2—Online
planning services and information
48Online atlas and search
facilities
49Standards and specifications
50Certification and verification of
information
51Online delivery of planning
services
Division 2—Planning
instruments
Subdivision 1—State planning
policies
56Preparation of state planning
policies
Subdivision 3—Planning
and Design Code
62Key provisions about content of
code
Subdivision 4—Design
standards
Subdivision 5—Related and common
provisions
67Incorporation of material and application of
instrument
71Complying changes—Planning and Design
Code
72Minor or operational amendments
Division 3—Building
related instruments
75Ministerial building standards
Division 1—Entities
constituting relevant authorities
76Entities constituting
relevant authorities
77Panels established by joint planning boards
or councils
78Panels established by Minister
79Appointment of additional
members
Division 3—Assessment
managers
Division 4—Accredited
professionals
85Use of term "building
certifier"
Division 5—Determination of relevant
authority
87Relevant
authority—Commission
89Relevant authority—assessment
managers
90Relevant authority—accredited
professionals
Part 7—Development
assessment—general scheme
94Development must be approved under this
Act
95Matters against which
development must be assessed
Subdivision 1—Categories
of development
Subdivision 2—Accepted
development
Subdivision 3—Code
assessed development
99Deemed-to-satisfy assessment
100Performance assessed
development
Subdivision 4—Impact
assessed development
102Practice direction to provide guidance
104Impact assessment by
Minister—procedural matters
Division 4—Procedural
matters and assessment facilitation
112Application and
provision of information
115Referrals to other
authorities or agencies
116Preliminary advice and
agreement
117Proposed development involving creation of
fortifications
118Time within which
decision must be made
119Determination of
application
Division 6—Variation of
authorisation
Part 8—Development
assessment—essential infrastructure
Division 1—Development
assessment—standard designs
122Development assessment—standard
designs
Division 2—Essential
infrastructure—alternative assessment process
123Essential infrastructure—alternative
assessment process
Part 9—Development
assessment—Crown development
124Development
assessment—Crown development
Part 10—Development
assessment and approval—related provisions
125Law governing
proceedings under this Act
129Urgent work in
relation to trees
130Interaction of controls on trees with other
legislation
Division 4—Land division
certificate
132Activities that affect
stability of land or premises
133Access to neighbouring land—general
provision
Division 6—Uncompleted
development
134Action if development
not completed
Division 7—Cancellation of
development authorisation
136Cancellation of development
authorisation
Division 8—Inspection
policies
Part 11—Building
activity and use—special provisions
139Notification during
building
Division 3—Party walls and similar
matters
140Construction of party
walls
Division 4—Classification and
occupation of buildings
144Classification of
buildings
Division 6—Swimming
pool and building safety
149Designated safety requirements
151Negation of joint and several liability in
certain cases
152Limitation on time when action may be
taken
Part 12—Mining—special
provisions
153Mining tenements to be
referred in certain cases to Minister
Part 13—Infrastructure
frameworks
Division 1—Infrastructure
delivery schemes
Subdivision 1—Establishment of
scheme
157Consideration of proposed
scheme
159Role of scheme coordinator in relation to
delivery of scheme
Subdivision 2—Funding
arrangements
162Exemptions from taxes and
levies
Subdivision 3—Scheme
contributions
164Contributions by constituent
councils
166Funds may be expended in subsequent
years
167Imposition of charge
by councils
Division 2—Infrastructure
powers
177Incorporation of Chief
Executive
Part 14—Land
management agreements
180Land management
agreements—development applications
Part 15—Funds and
off-set schemes
Division 1—Planning and Development
Fund
182Application and management of
Fund
185Open space contribution
scheme
Part 16—Disputes, reviews and
appeals
Division 1—General rights of review
and appeal
189Rights of review and
appeal
190Application to assessment
panel
192Powers of Court in
determining any matter
193Special provision relating
to building referees
Division 2—Initiation of proceedings
to gain a commercial competitive advantage
196Right of action in certain
circumstances
197Appointment of authorised
officers
198Powers of authorised
officers to inspect and obtain information
Division 2—General offences and
provisions relating to offences
Subdivision 1—General
offences
203Offences relating
specifically to building work
204False or misleading
information
Subdivision 2—General provisions
relating to offences
205Criminal jurisdiction of Court
207Offences by bodies
corporate—responsibility of officers
208Penalties for bodies corporate
211Proceedings commenced by
councils
213Imputation of conduct or state of mind of
officer, employee etc
214Statement of officer evidence against body
corporate
216Recovery of economic benefit
217Enforceable voluntary
undertakings
Part 19—Regulation of
advertisements
219Constitution of Environment, Resources and
Development Court
222Professional advice to
be obtained in relation to certain matters
224Accreditation of building products
etc
227Registering authorities to note
transfer
228Approvals by Minister or
Treasurer
229Compulsory acquisition of land
Schedule 1—Disclosure
of financial interests
Schedule 2—Subsidiaries
of joint planning boards
1Application for Ministerial
approval
4Appointment of board of
management
6Proceedings of board of
management
7Specific functions of board of
management
8Board members' duty of care etc
11Subsidiary subject to direction by joint
planning board
Schedule 3—Codes
of conduct and professional standards
3Professional standards and
investigations
Schedule 4—Performance
targets and monitoring
2Monitoring and evaluation of performance and
trends
Schedule 6—Repeal and certain
amendments
Part 3—Amendment of Character
Preservation (Barossa Valley) Act 2012
3Amendment of section
3—Interpretation
4Amendment of section 4—Interaction with
other Acts
5Amendment of section 5—Administration of
Act
6Amendment of section 7—Character values
of district
7Amendment of section 8—Limitations on
land division in district
8Amendment of section 10—Review of
Act
9Amendment of section
11—Regulations
Part 4—Amendment of Character
Preservation (McLaren Vale) Act 2012
10Amendment of section
3—Interpretation
11Amendment of section 4—Interaction with
other Acts
12Amendment of section 5—Administration
of Act
13Amendment of section 7—Character values
of district
14Amendment of section 8—Limitations on
land division in district
15Amendment of section 10—Review of
Act
16Amendment of section
11—Regulations
Part 5—Amendment of Environment,
Resources and Development Court Act 1993
17Amendment of section 21—Principles
governing hearings
35AElectronic
hearings and proceedings without hearings
Part 6—Amendment of Liquor
Licensing Act 1997
11CSteps to avoid
conflict with planning system
20Amendment of section 76—Other rights of
intervention
Part 7—Amendment of Local
Government Act 1999
21Amendment of section 221—Alteration of
road
22Amendment of section 222—Permits for
business purposes
234AInteraction
with processes associated with development authorisations
Part 8—Amendment of Public Sector
Act 2009
10AAgencies to
organise activities according to planning regions
Part 9—Amendment of Urban Renewal
Act 1995
25Amendment of section
5—Functions
26Amendment of section 7C—Functions of
URA
27Amendment of section
7G—Preliminary
28Amendment of section 7H—Establishment
of precincts
29Amendment of section 7I—Precinct
plans
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Planning, Development and Infrastructure
Act 2015.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act.
(1) In this Act, unless
the contrary intention appears—
accredited professional means a person who holds an
accreditation under
section 81
;
adjacent land in relation to other land, means land that is
no more than 40 metres from the other land;
adjoining owner means the owner of land that abuts (either
horizontally or vertically) on the land of a building owner;
advertisement means an advertisement or sign that is visible
from a street, road or public place or by passengers carried on any form of
public transport;
advertiser in relation to an advertisement, means the person
whose goods or services are advertised in the advertisement;
advertising hoarding means a structure for the display of an
advertisement or advertisements;
affected part of a building in relation to which building
work is to be carried out means any of the following:
(a) the principal pedestrian entrance of the building;
(b) any part of the building that is necessary to provide a continuous
accessible path of travel from the entrance to the location of the building
work;
allotment has the same meaning as in Part 19AB of the
Real
Property Act 1886
and in addition includes a community lot, development lot and common
property within the meaning of the
Community
Titles Act 1996
and a unit and common property within the meaning of the
Strata
Titles Act 1988
;
amendment includes an addition, excision or
substitution;
amenity of a locality or building means any quality,
condition or factor that makes, or contributes to making, the locality or
building harmonious, pleasant or enjoyable;
authorised officer means a person appointed to exercise the
powers of an authorised officer under this Act;
building means a building or structure or a portion of a
building or structure (including any fixtures or fittings which are subject to
the provisions of the Building Code), whether temporary or permanent, moveable
or immovable, and includes a boat or pontoon permanently moored or fixed to
land, or a caravan permanently fixed to land;
building certifier—see section 85;
Building Code means an edition of the Building Code of
Australia published by the Australian Building Codes Board in the National
Construction Code series;
building consent means a consent granted under
section 95(1)(b)
;
building owner means the owner of land on or in relation to
which building work is or is to be performed;
Building Rules means—
(a) the Building Code, as it applies under this Act; and
(b) any regulations
under this Act that regulate the performance, standard or form of building work;
and
(c) without limiting
paragraph (b)
, any regulations that relate to designated safety features; and
(d) the Ministerial building standards published by the Minister under
this Act;
building work means work or activity in the nature
of—
(a) the construction, demolition or removal of a building (including any
incidental excavation or filling of land); or
(b) any other prescribed work or activity,
but does not include any work or activity that is excluded by regulation
from the ambit of this definition;
business day means any day except—
(a) Saturday, Sunday or a public holiday; or
(b) any other day which falls between 25 December in any year and 1
January in the following year;
character preservation area means the area which constitutes
a district within the meaning of a character preservation law;
character preservation law means an Act that specifies that
it is a character preservation law for the purposes of this Act;
Chief Executive means the Chief Executive of the Department
and includes a person for the time being acting in that position;
Commission means the State Planning Commission established
under
Part 3
Division 1
;
Commissioner for Consumer Affairs means the person holding
the office of Commissioner for Consumer Affairs and includes a person for the
time being acting in that office;
construct in relation to a building,
includes—
(a) to build, rebuild, erect or re-erect the building;
(b) to repair the building;
(c) to make alterations to the building;
(d) to enlarge or extend the building;
(e) to underpin the building;
(f) to place or relocate the building on land;
council means a council constituted under the
Local
Government Act 1999
;
Court means the Environment, Resources and Development
Court;
Crown means the Crown in right of the State or in any of its
other capacities;
Department means the administrative unit of the Public
Service that is responsible for assisting a Minister in the administration of
this Act;
designated safety features means—
(a) in relation to a swimming pool—swimming pool safety features;
and
(b) in relation to a building—safety features relating to the use or
occupation of a building;
design standard—see
Part 5 Division 2
Subdivision 4
;
development means—
(a) a change in the use of land; or
(b) building work; or
(c) the division of an allotment; or
(d) the construction or alteration (except by the Crown, a council or
other public authority (but so as not to derogate from the operation of
paragraph (e)
)) of a road, street or thoroughfare on land (including excavation or other
preliminary or associated work); or
(e) in relation to
a State heritage place—the demolition, removal, conversion, alteration or
painting of, or addition to, the place, or any other work that could materially
affect the heritage value of the place; or
(f) in relation to a local heritage place—any work (including
painting) that could materially affect the heritage value of the place
(including, in the case of a tree, any tree-damaging activity) specified by the
Planning and Design Code for the purposes of this paragraph (whether in relation
to local heritage places generally or in relation to the particular local
heritage place); or
(g) the external
painting of a building within an area specified by the Planning and Design Code
for the purposes of this paragraph; or
(h) in relation to a regulated tree—any tree-damaging activity;
or
(i) the creation of fortifications; or
(j) prescribed mining operations on land; or
(k) prescribed earthworks (to the extent that any such work or activity is
not within the ambit of a preceding paragraph); or
(l) an act or activity in relation to land declared by or under the
regulations to constitute development,
(including development on or under water) but does not include an act or
activity that is declared by or under the regulations not to constitute
development for the purposes of this Act;
development authorisation means any assessment, decision,
permission, consent, approval, authorisation or certificate
required—
(a) by or under this Act; or
(b) by or under any other Act prescribed by the regulations for the
purposes of this definition;
division of an allotment means—
(a) the division, subdivision or resubdivision of the allotment (including
by community plan under the
Community
Titles Act 1996
and by strata plan under the
Strata
Titles Act 1988
); or
(b) the alteration of the boundaries of an allotment; or
(c) the conferral or exercise of a present right to occupy part only of an
allotment under a lease or licence, or an agreement for a lease or licence, the
term of which exceeds 6 years or such longer term as may be prescribed, or
in respect of which a right or option of renewal or extension exists so that the
lease, licence or agreement may operate by virtue of renewal or extension for a
total period exceeding 6 years or such longer period as may be prescribed,
but does not include a lease, licence or agreement of a class excluded from the
ambit of this paragraph by the regulations; or
(d) the grant or acceptance of a lease or licence, or the making of an
agreement for a lease or licence, of a class prescribed by the
regulations,
and to divide has a corresponding meaning;
document means a paper or record of any kind, including a
disk, tape or other article from which information is capable of being
reproduced (with or without the aid of another article or device);
domestic partner means a person who is a domestic partner
within the meaning of the
Family
Relationships Act 1975
, whether declared as such under that Act or not;
EIS—see
subsection (4)
;
Environment Protection Authority means the Environment
Protection Authority established under the
Environment
Protection Act 1993
;
ERD Committee means the Environment, Resources and
Development Committee of the Parliament;
ESCOSA means the Essential Services Commission established
under the
Essential
Services Commission Act 2002
;
essential infrastructure means—
(a) infrastructure, equipment, structures, works and other facilities used
in or in connection with—
(i) the generation of electricity or other forms of energy; or
(ii) the distribution or supply of electricity, gas or other forms of
energy; and
(b) water infrastructure or sewerage infrastructure within the meaning of
the
Water
Industry Act 2012
; and
(c) transport networks or facilities (including roads, railways, busways,
tramways, ports, wharfs, jetties, airports and freight-handling facilities);
and
(d) causeways, bridges or culverts; and
(e) embankments, walls, channels, drains, drainage holes or other forms of
works or earthworks; and
(f) testing or
monitoring equipment; and
(g) coast protection works or facilities associated with sand
replenishment; and
(h) communications networks; and
(i) health, education or community facilities; and
(j) police, justice or emergency services facilities; and
(k) other infrastructure, equipment, buildings, structures, works or
facilities brought within the ambit of this definition—
(i) by the Planning and Design Code; or
(ii) by the regulations;
fire authority means the South Australian Metropolitan Fire
Service or the South Australian Country Fire Service;
fortification has the same meaning as in Part 16 of the
Summary
Offences Act 1953
;
Greater Adelaide means Greater Adelaide constituted under
section 5
;
joint planning board means a joint planning board constituted
under a planning agreement;
land means, according to context—
(a) land as a physical entity, including land covered with water and
including any building on, or fixture to, the land; or
(b) any legal estate or interest in, or right in respect of,
land;
LGA means the Local Government Association of South
Australia;
liability includes a contingent liability;
local government rate means a rate imposed under the
Local
Government Act 1999
;
local heritage place means a place that is designated as a
place of local heritage by the Planning and Design Code;
locality includes a road, street or thoroughfare;
Mining Act means—
(a) the
Mining
Act 1971
; or
(b) the
Offshore
Minerals Act 2000
; or
(c) the
Opal
Mining Act 1995
; or
(d) the
Petroleum
and Geothermal Energy Act 2000
; or
(e) the
Petroleum
(Submerged Lands) Act 1982
;
mining production tenement means a lease or licence granted
under a Mining Act that is brought within the ambit of this definition by the
regulations;
owner of land means—
(a) if the land is unalienated from the Crown—the Crown;
or
(b) if the land is alienated from the Crown by grant in fee
simple—the owner of the estate in fee simple; or
(c) if the land is held from the Crown by lease or licence—the
lessee or licensee; or
(d) if the land is held from the Crown under an agreement to
purchase—the person who has the right to purchase;
party wall means a wall built to separate 2 or more
buildings or a wall forming part of a building and built on the dividing line
between adjoining premises for their common use and includes a common wall for
the purposes of the Building Code;
Planning and Design Code—see
Part 5 Division 2
Subdivision 3
;
Planning and Development Fund means the Planning and
Development Fund continued in existence under this Act;
planning agreement means an agreement under
Part 3
Division 3
;
planning consent means a consent granted under
section 95(1)(a)
;
planning region means a planning region constituted under
section 5
;
Planning Rules means—
(a) the Planning and Design Code; and
(b) the design standards that apply under
Part 5 Division 2
Subdivision 4
; and
(c) any other instrument prescribed by the regulations for the purposes of
this definition;
practice direction issued by the Commission under, or in
accordance with,
section 42
;
practice guideline means a practice guideline issued by the
Commission under, or in accordance with,
section 43
;
precinct authority means a precinct authority under
Part 2A of the
Urban
Renewal Act 1995
;
prescribed mining operations means operations carried on in
the course of—
(a) the recovery of naturally occurring substances (except water) from the
earth (whether in solid, liquid or gaseous form);
(b) the recovery of minerals by the evaporation of water,
but does not include operations carried on in pursuance of any of the
Mining Acts;
public notice means notice that complies with regulations
made for the purposes of this definition;
public place includes a street, road, square, reserve, lane,
footway, court, alley and thoroughfare which the public are allowed to use
(whether formed on private property or not), any public watercourse, and any
foreshore;
public realm means—
(a) parks and other public places; and
(b) streetscapes;
railway includes—
(a) a tramway; and
(b) track structures;
regional plan—see
Part 5
Division 2 Subdivision 2
;
Registrar-General includes the Registrar-General of
Deeds;
regulated tree means—
(a) a tree, or a tree within a class of trees, declared to be regulated by
the regulations (whether or not the tree also constitutes a significant tree
under the regulations); or
(b) a tree declared to be a significant tree, or a tree within a stand of
trees declared to be significant trees, under the Planning and Design Code
(whether or not the tree is also declared to be a regulated tree, or also falls
within a class of trees declared to be regulated trees, by the
regulations);
relevant authority—see
section 76
;
repealed Act means the
Development
Act 1993
;
right includes a right of action;
SA planning database—see
Part 4
Division 2
;
SA planning portal—see
Part 4
Division 2
;
significant tree means—
(a) a tree declared to be a significant tree, or a tree within a stand of
trees declared to be significant trees, under the Planning and Design Code
(whether or not the tree is also declared to be a regulated tree, or also falls
within a class of trees declared to be regulated trees, by the regulations);
or
(b) a tree declared to be a regulated tree by the regulations, or a tree
within a class of trees declared to be regulated trees by the regulations that,
by virtue of the application of prescribed criteria, is to be taken to be a
significant tree for the purposes of this Act;
South Australian Heritage Council means the South Australian
Heritage Council constituted under the
Heritage
Places Act 1993
;
special legislative scheme—see
section 11
;
spouse—a person is a spouse of another if they are
legally married;
the State includes any part of the sea—
(a) that is within the limits of the State; or
(b) that is from time to time included in the coastal waters of the State
by virtue of the Coastal Waters (State Powers) Act 1980 of the
Commonwealth;
State heritage place means—
(a) a place entered, either on a provisional or permanent basis, in the
State Heritage Register; or
(b) a place within an area established as a State Heritage Area under the
Heritage
Places Act 1993
;
statutory instrument means—
(a) a state planning policy; or
(b) a regional plan; or
(c) the Planning and Design Code; or
(d) a design standard; or
(e) a practice direction, guideline, standard or specification published
by the Commission under this Act; or
(f) any other instrument prescribed by the regulations for the purposes of
this definition;
structure includes a fence or wall;
swimming pool means an excavation or structure that is
capable of being filled with water and is used primarily for swimming, wading,
paddling or the like and includes a bathing or wading pool or spa pool (but not
a spa bath);
swimming pool safety features means a fence, barrier or other
structure or equipment prescribed by the regulations for the purposes of this
definition;
tree-damaging activity means—
(a) the killing or destruction of a tree; or
(b) the removal of a tree; or
(c) the severing of branches, limbs, stems or trunk of a tree;
or
(d) the ringbarking, topping or lopping of a tree; or
(e) any other substantial damage to a tree,
and includes any other act or activity that causes any of the foregoing to
occur but does not include maintenance pruning that is not likely to affect
adversely the general health and appearance of a tree or that is excluded by
regulation from the ambit of this definition;
to undertake development means to commence or proceed with
development or to cause, suffer or permit development to be commenced or to
proceed.
(2) For the purposes of this Act, any plant that is commonly known as a
palm will be taken to be a tree.
(3) For the purposes of this Act, a stand of trees is a group of trees
that form a relatively coherent group by virtue of being the same or a similar
species, size, age and structure.
(4) A reference in this
Act to an EIS is a reference to an environmental impact statement, being a
document that includes a detailed description and analysis of a wide range of
issues relevant to a development or project and incorporates significant
information to assist in an assessment of environmental, social or economic
effects associated with the development or project and the means by which those
effects can be managed.
(5) If at the foot of a section or subsection the words "Additional
penalty" appear, those words signify that a person who undertakes development in
contravention of, and thus commits an offence against, that section or
subsection is liable, in addition to any other penalty prescribed for the
offence, to a penalty of an amount not exceeding the cost of the development
insofar as it has been undertaken in contravention of that section or
subsection.
(6) If at the foot of a section or subsection the words "Default penalty"
appear, those words signify that, where a person is convicted of an offence
against the section or subsection and the offence continues after the date of
the conviction, the person is guilty of a further offence against the section or
subsection and liable, in addition to any other penalty prescribed for the
offence, to a penalty not exceeding the amount of the default penalty for every
day the offence continues after the date of the conviction.
(7) For the purposes of this Act, a person is an associate of another
person if—
(a) the other person is a relative of the person or of the person's spouse
or domestic partner; or
(i) is a body corporate; and
(ii) the person or a relative of the person or of the person's spouse or
domestic partner has, or 2 or more such persons together have, a relevant
interest or relevant interests in shares of the body corporate the nominal value
of which is not less than 10% of the nominal value of the issued share
capital of the body corporate; or
(c) the other person is a trustee of a trust of which the person, a
relative of the person or of the person's spouse or domestic partner or a body
corporate referred to in
paragraph (b)
is a beneficiary; or
(d) the person is an associate of the other person within the meaning of
the regulations.
(1) For the purpose of determining whether a change in the use of land has
occurred, the commencement or revival of a particular use of the land will,
subject to this section, be regarded as a change in the use of the land
if—
(a) the use supersedes a previous use of the land; or
(b) the commencement of the use or the revival of the use follows on from
a period of non-use; or
(c) the use is additional to a previously established use of the land
which continues despite the commencement of the new use; or
(d) there is a material increase in the intensity of the use of the land
after applying any principle specified by the Planning and Design Code for the
purposes of this paragraph.
(2) The revival of
a use of land after a period of discontinuance will be regarded as the
continuation of an existing use unless (subject to
subsection (3)
)—
(a) the period intervening between the discontinuance and revival of the
use exceeds 12 months; or
(b) during the whole or a part of the period intervening between its
discontinuance and revival, the use was superseded by some other use.
(3) The revival of
a use of land after a period of discontinuance will also be regarded as the
continuance of an existing use—
(a) if the revival of the use is allowed under a principle specified by
the Planning and Design Code for the purposes of this subsection; or
(b) in circumstances prescribed by the regulations.
(4) A change of use within a use class specified in the Planning and
Design Code will not be regarded as a change in the use of land under this
Act.
(5) A change of use specified in the Planning and Design Code as a minor
change of use will not be regarded as a change in the use of land under this
Act.
(6) Without limiting a preceding subsection, a particular use of land will
be disregarded if the extent of the use is trifling or insignificant.
5—Planning
regions and Greater Adelaide
(1) The Governor
may, by proclamation made on the recommendation of the Minister—
(a) divide the State into planning regions for the purposes of this Act;
and
(b) define 1 of the planning regions as constituting Greater Adelaide
for the purposes of this Act.
(2) The Governor
may, by subsequent proclamation made on the recommendation of the
Minister—
(i) any planning region; or
(b) abolish a planning region (on the basis that a new division is to
occur), other than Greater Adelaide.
(3) The Minister must, in formulating a recommendation for the purposes of
subsection (1)
or
(2)
—
(a) seek to reflect communities of interest at a regional level;
and
(b) take into account—
(i) the boundaries of the areas of councils and other relevant
administrative boundaries that apply within the State; and
(ii) relevant economic, social and cultural factors; and
(iii) relevant environmental factors (including water catchment areas and
biogeographical regions); and
(c) give attention to the need to achieve effective planning consistent
with the objects of this Act, and the delivery of infrastructure, government
services and other relevant services, at the regional level.
(4) The Minister must, before a proclamation is made under this
section—
(a) seek the advice of the Commission; and
(b) give any council that will be directly affected notice of the proposed
proclamation and give consideration to any submission made by such a council
within a period (being at least 28 days) specified in the notice,
and the Minister may consult in relation to a proposed proclamation with
any other person or body as the Minister thinks fit.
(5) The Minister must ensure that a proclamation under this section is
published on the SA planning portal.
(6) If the Governor
makes a proclamation under
subsection (2)(a)(ii)
—
(a) the Minister must cause a copy of the proclamation to be laid before
both Houses of Parliament; and
(b) the proclamation cannot take effect unless approved by a resolution
passed by both Houses of Parliament.
(7) Notice of motion for a resolution under
subsection (6)
must be given at least 6 sitting days before the motion is
passed.
(8) A proclamation under this section may define an area (either for the
purposes of constituting a planning region or Greater Adelaide) by a plan
deposited in the General Registry Office by the Minister (as it exists at a
specified date), or in some other way as the Governor thinks fit.
(1) The Minister may, by notice published in the Gazette and on the SA
planning portal, establish a subregion within a planning region.
(2) The Minister may, by subsequent notice published in the Gazette and on
the SA planning portal—
(a) vary the boundaries of a subregion; or
(b) abolish a subregion.
(3) The Minister must, before a notice is published under this section,
seek the advice of the Commission.
(4) A notice under this section may define an area by a plan deposited in
the General Registry Office by the Minister (as it exists at a specified date),
or in some other way as the Minister thinks fit.
7—Environment
and food production areas—Greater Adelaide
(1) The Minister may,
by notice published in the Gazette and on the SA planning portal, establish 1 or
more environment and food production areas within Greater Adelaide (but
not within any part of Greater Adelaide that is within a character preservation
area).
(2) The Minister must, in acting under
subsection (1)
, seek to ensure—
(a) that areas of rural, landscape or environmental significance within
Greater Adelaide are protected from urban encroachment by the establishment of 1
or more environment and food production areas; and
(b) that an area or areas outside environment and food production areas
support the principle of urban renewal and consolidation of existing urban
areas; and
(c) that adequate provision is made outside environment and food
production areas to accommodate housing and employment growth over the longer
term (being at least a 15 year period) in a manner that avoids undue upward
pressure on the cost of housing, transport and other services; and
(d) that appropriate programs and initiatives are under consideration in
order to achieve the affordable renewal or revitalisation of existing urban
areas,
and the Minister may take into account such other matters as the Minister
thinks fit.
(3) The following
provisions will apply in relation to a proposed development in an environment
and food production area that involves a division of land that would create 1 or
more additional allotments:
(a) a relevant authority, other than the Commission or the Minister, must
not grant development authorisation to the development unless the Commission
concurs in the granting of the authorisation;
(b) if the Commission is the relevant authority, the Commission must not
grant development authorisation to the development unless the council for the
area where the proposed development is situated concurs in the granting of the
authorisation;
(c) no appeal lies against a refusal by a relevant authority to grant
development authorisation to the development or a refusal by the Commission or a
council to concur in the granting of such an authorisation;
(d) if the proposed development will create additional allotments to be
used for residential development, the relevant authority must refuse to grant
development authorisation in relation to the proposed development;
(e) a development authorisation granted in relation to the proposed
development will be taken to be subject to the condition that the additional
allotments created will not be used for residential development.
(4) For the avoidance of doubt, the establishment of 1 or more environment
and food production areas does not affect the operation of this Act, a Mining
Act or any other Act, except as provided in
subsection (3)
.
(5) The Minister may,
by subsequent notice published in the Gazette and on the SA planning portal,
vary or abolish an environment and food production area.
(6) The Minister must,
before a notice is published under
subsection (5)
, have obtained the advice of the Commission.
(7) The Commission
must, in connection with providing advice under
subsection (5)
—
(a) conduct an inquiry into the matter; and
(b) furnish a report on the outcome of the inquiry to the
Minister.
(8) If the Minister
publishes a notice under
subsection (5)
—
(a) the Minister must cause—
(i) a copy of the notice; and
(ii) a copy of the report of the Commission under
subsection (7)
,
to be laid before both Houses of Parliament; and
(b) the notice cannot take effect unless approved by a resolution passed
by both Houses of Parliament.
(9) Notice of motion for a resolution under
subsection (8)
must be given at least 6 sitting days before the motion is
passed.
(10) A notice under this section may define an area by a plan deposited in
the General Registry Office by the Minister (as it exists at a specified date),
or in some other way as the Minister thinks fit.
(11) In this section—
residential development means development primarily for
residential purposes but does not include—
(a) the use of land for the purposes of a hotel or motel or to provide any
other form of temporary residential accommodation for valuable consideration;
or
(b) a dwelling for residential purposes on land used primarily for primary
production purposes.
8—Application
of Act—general provision
(1) Subject to this section, this Act applies throughout the
State.
(2) The regulations may provide—
(a) that a specified provision of this Act does not apply, or applies with
prescribed variations, to a part of the State specified by the
regulations;
(b) that a specified provision of this Act does not apply, or applies with
prescribed variations, in respect of a particular class of place or development,
or in any circumstance or situation (or circumstance or situation of a
prescribed class), specified by the regulations,
and, subject to any condition to which the regulation is expressed to be
subject, the operation of this Act is modified accordingly.
This Act binds the Crown in right of the State and also, so far as the
legislative power of the State extends, the Crown in all its other capacities,
but not so as to impose any criminal liability on the Crown.
10—Interaction
with other Acts
Except where the contrary intention is expressed in this or any other Act,
this Act is in addition to and does not limit or derogate from the provisions of
any other Act.
11—Recognition
of special legislative schemes
For the purposes of this Act, a special legislative scheme
is—
(a) a character preservation law; or
(b) any of the following Acts:
(i) the
River
Murray Act 2003
;
(ii) the
Adelaide
Dolphin Sanctuary Act 2005
;
(iii) the
Marine
Parks Act 2007
;
(iv) the
Arkaroola
Protection Act 2012
; or
(c) another Act, or a part of another Act, that is—
(i) declared by that other Act to be a special legislative scheme for the
purposes of this Act; or
(ii) declared by the regulations to be a special legislative scheme for
the purposes of this Act.
Part 2—Objects,
planning principles and general responsibilities
Division 1—Objects
and planning principles
(1) The primary object
of this Act is to support and enhance the State's prosperity by creating an
effective, efficient and enabling planning system, linked with other laws,
that—
(a) promotes and facilitates development, and the integrated delivery and
management of infrastructure and public spaces and facilities, consistent with
planning principles and policies; and
(b) provides a scheme for community participation in relation to the
initiation and development of planning policies and strategies.
(2) In association with the object referred to
subsection (1)
, the scheme established by this Act is intended to—
(a) be based on policies, processes and practices that are designed to be
simple and easily understood and that provide consistency in interpretation and
application; and
(b) enable people who use or interact with the planning system to access
planning information, and to undertake processes and transactions, by digital
means; and
(c) promote certainty for people and bodies proposing to undertake
development while at the same time providing scope for innovation; and
(d) promote high standards for the built environment through an emphasis
on design quality in policies, processes and practices; and
(e) promote safe and efficient construction through cost-effective
technical requirements that form part of a national scheme of construction rules
and product accreditation; and
(f) provide financial mechanisms, incentives and value-capture schemes
that support development and that can be used to capitalise on investment
opportunities; and
(g) promote cooperation, collaboration and policy integration between and
among State government agencies and local government bodies.
A person or body involved in the administration of this Act must have
regard to, and seek to further, the objects established by this
section.
14—Principles
of good planning
In seeking to further the objects of this Act, regard should be given to
the following principles that relate to the planning system established by this
Act (insofar as may be reasonably practicable and relevant in the
circumstances):
(a) long-term focus principles as follows:
(i) policy frameworks should be based around long-term priorities, be
ecologically sound, and seek to promote equity between present and future
generations;
(ii) policy frameworks should be responsive to emerging challenges,
changing trends and cumulative impacts identified by monitoring, benchmarking
and evaluation programs;
(b) urban renewal principles as follows:
(i) preference should be given to accommodating expected future growth of
cities and towns through the logical consolidation and redevelopment of existing
urban areas;
(ii) the encroachment of urban areas on areas of rural, landscape or
environmental significance is to be avoided other than in exceptional
circumstances;
(iii) urban renewal should seek to make the best use (as appropriate) of
underlying or latent potential associated with land, buildings and
infrastructure;
(c) high-quality design principles as follows:
(i) development should be designed to reflect local setting and context,
to have a distinctive identity that responds to the existing character of its
locality, and to strike a balance between built form, infrastructure and public
realm;
(ii) built form should be durable, designed to be adaptive (including in
relation to the reuse of buildings or parts of buildings) and compatible with
relevant public realm;
(iii) public realm should be designed to be used, accessible, and
appropriately landscaped and vegetated;
(iv) cities and towns should be planned and designed to be well-connected
in ways that facilitate the safe, secure and effective movement of people within
and through them;
(d) activation and liveability principles as follows:
(i) planning and design should promote mixed use neighbourhoods and
buildings that support diverse economic and social activities;
(ii) urban areas should include a range of high quality housing options
with an emphasis on living affordability;
(iii) neighbourhoods and regions should be planned, designed and developed
to support active and healthy lifestyles and to cater for a diverse range of
cultural and social activities;
(e) sustainability principles as follows:
(i) cities and towns should be planned, designed and developed to be
sustainable;
(ii) particular effort should be focussed on achieving energy efficient
urban environments that address the implications of climate change;
(iii) policies and practices should promote sustainable resource use,
reuse and renewal and minimise the impact of human activities on natural systems
that support life and biodiversity;
(f) investment facilitation principles as follows:
(i) planning and design should be undertaken with a view to strengthening
the economic prosperity of the State and facilitating proposals that foster
employment growth;
(ii) the achievement of good planning outcomes should be facilitated by
coordinated approaches that promote public and private investment towards common
goals.
(g) integrated delivery principles as follows:
(i) policies, including those arising outside the planning system, should
be coordinated to ensure the efficient and effective achievement of planning
outcomes;
(ii) planning, design and development should promote integrated transport
connections and ensure equitable access to services and amenities;
(iii) any upgrade of, or improvement to, infrastructure or public spaces
or facilities should be coordinated with related development;
Division 2—General
duties and coordination of activities
(1) It is expected that
a person or body that—
(a) seeks to obtain an authorisation under this Act; or
(b) performs, exercises or discharges a function, power or duty under this
Act; or
(c) takes the benefit of this Act or is otherwise involved in a process
provided by this Act,
will—
(d) act in a cooperative and constructive way; and
(e) be honest and open in interacting with other entities under this Act;
and
(f) be prepared to find reasonable solutions to issues that affect other
interested parties or third parties.
(2) Without limiting
subsection (1)
, a person or body performing, exercising or discharging a function, power
or duty under this Act must—
(a) exercise professional care and diligence; and
(b) act honestly and in an impartial manner; and
(c) be responsible and accountable in its conduct; and
(d) comply with any code of conduct, service benchmark or other
requirement that applies in relation to the person or body.
(3) The Minister may, after taking into account the advice of the
Commission, establish and maintain service benchmarks for the purposes of this
section.
(4) The principles and benchmarks under this section—
(a) do not give rise to substantive rights or liabilities; but
(b) may lead to action being taken on account of a breach of a code of
conduct or professional standard that applies in relation to a relevant person
or body.
16—Responsibility
to coordinate activities
(1) It is expected that
any State or local government body or agency will, in the performance, exercise
or discharge of a function, power or duty (including in a case arising under
another Act), insofar as may be appropriate and relevant in the circumstances,
seek to develop and implement policies that are consistent with the schemes
established by this Act and will cooperate with any person or body involved in
the administration of this Act.
(2) The Commission may, as it thinks fit, furnish to the Minister a report
on any failure by a body or agency to comply with the requirements of
subsection (1)
.
Division 1—State
Planning Commission
Subdivision 1—Establishment
and constitution of Commission
17—Establishment
of Commission
(1) The State Planning Commission is established.
(2) The Commission is a body corporate.
(3) The Commission is an instrumentality of the Crown.
(4) The Commission is
subject to the general control and direction of the Minister.
(5) However, the
Minister may not give a direction where—
(a) the Commission is making or required to make a recommendation;
or
(b) the Commission is providing or required to provide advice to the
Minister; or
(c) the Commission is required to give effect to an order of a court;
or
(d) the Commission has a discretion in relation to the granting of a
development authorisation.
(6) The Commission must, in the performance of its functions, take into
account—
(a) a particular government policy; or
(b) a particular principle or matter,
specified by the Minister (subject to any relevant principle of
law).
(1) Subject to this
section, the Commission consists of—
(a) at least 4
and not more than 6 persons appointed by the Minister; and
(b) the Chief Executive (ex officio).
(2) A person appointed
to the Commission must have such qualifications, knowledge, expertise or
experience as are, in the Minister's opinion, relevant to the functions of the
Commission.
(3) Without limiting
subsection (2)
, the Minister must give consideration to appointing persons so as to
provide a range of qualifications, knowledge, expertise and experience in the
following areas:
(a) economics, commerce or finance;
(b) planning, urban design or architecture;
(c) development or building construction;
(d) the provision of or management of infrastructure or transport
systems;
(e) social or environmental policy or science;
(f) local government, public administration or law.
(4) The Minister will appoint 1 member of the Commission to chair the
meetings of the Commission.
(5) The Minister may appoint a suitable person to be a deputy of an
appointed member of the Commission and to act as a member of the Commission
during any period of absence of the appointed member.
19—Special
provision relating to constitution of Commission
(1) The Commission
may appoint 1 or 2 persons to act as additional members of the
Commission for the purposes of dealing with any matter arising under this
Act.
(2) The following provisions apply in connection with
subsection (1)
:
(a) a person
appointed under that subsection must be selected from a list of persons
established by the Minister for the purposes of that subsection;
(b) the Minister should, in establishing the list under
paragraph (a)
, seek to obtain a wide range of expertise relevant to the classes of
matters that might (in the opinion of the Minister after consultation with the
Commission) be suited to being assessed by the Commission as constituted after
an appointment or appointments have been made under that subsection;
(c) a person will be appointed to, and remain on, the list under
paragraph (a)
on terms and conditions determined by the Minister and, at the expiration
of a term of appointment, is eligible for reappointment;
(d) the Commission must make an appointment or appointments under that
subsection in a prescribed case;
(e) a person appointed under that subsection is not to be considered to be
an appointed member of the Commission under the other sections of this
Subdivision.
(1) An appointed member of the Commission is appointed on conditions
determined by the Minister and for a term, not exceeding 3 years, specified
in the instrument of appointment and, at the expiration of a term of
appointment, is eligible for reappointment.
(2) The Minister may
remove an appointed member of the Commission from office—
(a) for breach of, or non-compliance with, a condition of appointment;
or
(b) for misconduct; or
(c) for failure or incapacity to carry out official duties
satisfactorily.
(3) The office of an appointed member of the Commission becomes vacant if
the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of an indictable offence or is sentenced to imprisonment
for an offence; or
(e) becomes bankrupt or applies to take the benefit of a law for the
relief of insolvent debtors; or
(f) is removed from office under
subsection (2)
.
An appointed member of the Commission is entitled to fees, allowances and
expenses determined by the Minister.
Subdivision 2—Functions
and powers
(1) The Commission has
the following functions:
(a) to act as the
State's principal planning advisory and development assessment body;
(b) to support the
Minister in the administration of this Act and, in so doing, to provide advice,
and make recommendations, to the Minister on the administration of this Act and
with respect to the effect of any other legislation that is relevant to the
operation of this Act;
(c) at the request of the Minister, to provide a report on any specified
matter;
(d) to work with—
(i) the other entities involved in the administration of this Act;
and
(ii) other entities that perform functions or exercise powers under any
other Act that is relevant to the operation of this Act or to furthering the
objects of this Act; and
(iii) other entities (both within the public and private sectors) that
have a significant role with respect to planning, development or infrastructure
provision within the State;
(e) to conduct
inquiries with respect to any matter—
(i) referred to the Commission by the Minister under this paragraph;
or
(ii) determined by the Commission under this paragraph with the approval
of the Minister; and
(f) to assist the Minister by working with the Chief
Executive—
(i) in connection with the implementation of planning policies developed
under this Act; and
(ii) in considering and providing advice with respect to funding programs
that are relevant to planning or development within the State; and
(iii) in working with government agencies and councils, including by
providing information, guidance material and training in connection with the
operation of this Act; and
(iv) in undertaking or publishing research, or analysing or monitoring
trends, with respect to planning and development within the State;
(g) such other functions assigned to the Commission by the Minister or by
or under this or any other Act.
(2) Without limiting
subsection (1)
, the Commission has a role that includes providing advice with respect to
any of the following matters:
(a) initiatives that are consistent with or promote principles that relate
to the planning system established by this Act;
(b) the regulatory controls, standards or rules that apply, or should
apply, with respect to development;
(c) the making, amendment or repeal of instruments under this
Act;
(d) the performance of entities acting under this Act;
(e) other matters or issues that are relevant to the operation of this
Act.
(3) The Commission may, in relation to providing advice under this Act,
act on its own initiative or on request.
(4) If an inquiry is conducted by the Commission under
subsection (1)(e)
—
(a) the Commission may, for the purposes of the inquiry—
(i) call for or receive submissions or representations; and
(ii) request any person to provide information or materials to the
Commission; and
(iii) otherwise collect information or materials or inform itself as the
Commission thinks fit; and
(b) the Commission may, if it thinks fit, receive or retain any
information or materials provided to it on a confidential basis; and
(c) the Commission must, at the conclusion of the inquiry, furnish a
report to the Minister about—
(i) the matters addressed by the inquiry; and
(ii) the outcomes of the inquiry; and
(iii) any other relevant matter (including any advice or recommendations
of the Commission).
(5) An agency or
instrumentality of the Crown must, at the request of the Commission and insofar
as is appropriate—
(a) take steps to cooperate with the Commission in connection with the
performance of its functions; and
(b) provide information that will assist the Commission in the performance
of its functions.
(6) Without limiting
subsection (5)
, an agency or instrumentality of the Crown must, at the direction of the
Minister—
(a) participate in any committee established by the Commission in
connection with the operation of the planning system under this Act or
development within the State; and
(b) comply with any requirement specified by the Minister in order to
resolve any issue associated with the formulation or implementation of a
planning policy under this Act.
(7) The Minister may only act under
subsection (6)
after taking into account the advice of the Commission in relation to the
matter.
(8) A direction under
subsection (6)
is not binding on an agency or instrumentality of the Crown to the extent
(if any) to which—
(a) it would impede or affect the performance of a quasi-judicial or
statutorily independent function of the entity; or
(b) it is inconsistent with a direction or determination of another
Minister under another Act.
The Commission has all the powers of a natural person together with the
powers conferred on the Commission by or under this or any other Act and may do
anything necessary or convenient to be done in the performance of its
functions.
24—Minister
to be kept informed
The Commission must—
(a) keep the Minister reasonably informed about its activities;
and
(b) if a matter arises that in the Commission's opinion may prevent, or
adversely affect, the performance of any function or the achievement of any
objective or target outlined in its performance statement, promptly inform the
Minister of the matter.
25—Minister
to have access to information
(a) to require the Commission to collect or retain specified information;
and
(b) to have information in the possession of the Commission; and
(c) if the information is in or on a document, to have, and make and
retain copies of, that document.
(2) The Minister may, in connection with the operation of
subsection (1)
—
(a) request the Commission to furnish information to the Minister;
and
(b) request the
Commission to give the Minister access to information; and
(c) for the purposes of
paragraph (b)
, make use of the staff of the Commission to obtain the information and
furnish it to the Minister.
(3) However, the Minister is not entitled to obtain under this section
information that the Commission considers should be treated for any reason as
confidential so long as the Commission does not adversely affect the proper
performance of ministerial functions or duties.
An act or proceeding of the Commission is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
(1) A quorum at a meeting of the Commission consists of a number
ascertained by dividing the total number of members by half, ignoring any
fraction resulting from the division, and adding 1 (and no business may be
transacted at a meeting of the Commission unless a quorum is present).
(2) A decision carried by a majority of the votes cast by members at a
meeting is a decision of the Commission.
(3) Each member present at a meeting of the Commission is entitled to
1 vote on any matter arising for decision and, if the votes are equal, the
member presiding at the meeting is entitled to a second or casting
vote.
(4) A conference between members constituting a quorum by telephone or
audio-visual means is a valid meeting of the Commission if—
(a) a notice of the conference is given to all members in the manner
determined by the Commission for that purpose; and
(b) the system of communication allows a participating member to
communicate with any other participating member during the conference.
(5) A resolution of the Commission—
(a) of which prior notice was given to members in accordance with
procedures determined by the Commission; and
(b) in which at least the majority of members of the Commission expressed
their concurrence in writing or by electronic communication,
will be taken to be a decision of the Commission made at a meeting of the
Commission.
(6) A member of the
Commission who has a direct or indirect personal or pecuniary interest in a
matter before the Commission (other than an indirect interest that exists in
common with a substantial class of persons)—
(a) must, as soon as he or she becomes aware of his or her interest,
disclose the nature and extent of the interest to the Commission; and
(b) must not take part in any hearings conducted by the Commission, or in
any deliberations or decision of the Commission, on the matter and must be
absent from the meeting when any deliberations are taking place or decision is
being made.
Maximum penalty: $30 000.
(7) Without limiting the effect of
subsection (6)
, a member of the Commission will be taken to have an interest in a matter
for the purposes of that subsection if an associate of the member has an
interest in the matter.
(8) The Commission must have accurate minutes kept of its
proceedings.
(9) Subject to this Act, the Commission may determine its own
procedures.
28—Disclosure
of financial interests
A member of the Commission must disclose his or her financial interests in
accordance with
Schedule 1
.
(1) The Commission—
(a) must establish such committees as may be required—
(i) by the regulations; or
(ii) by the Minister; and
(b) may, with the approval of the Minister, establish other
committees,
to advise the Commission on any aspect of its functions, or to assist the
Commission in the performance of its functions or the exercise of its
powers.
(2) A committee may, but need not, consist of or include members of the
Commission.
(3) The procedures to be observed in relation to the conduct of business
of a committee will be—
(a) as determined by the Commission; or
(b) insofar as the procedure is not determined by the Commission—as
determined by the relevant committee.
(1) The Commission may delegate any of its functions or powers.
(2) A delegation—
(a) may be made—
(i) to a particular person or body; or
(ii) to the person for the time being occupying a particular office or
position; and
(b) must, if required by the Minister, be made to a committee of the
Commission designated by the Minister; and
(c) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(d) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(e) is revocable at will and does not derogate from the power of the
Commission to act in any matter.
(1) There will be such staff to assist the Commission as the Minister may
approve.
(2) The staff of the Commission will be public service
employees.
(3) In addition, the Commission may—
(a) by arrangement with the appropriate authority, make use of the
services, facilities or staff of any government department, agency or
instrumentality; or
(b) with the approval of the Minister—
(i) make use of the services, facilities or staff of any other entity;
and
(ii) engage any person to perform specific work on terms and conditions
determined by the Commission.
(1) The Commission must, on or before 30 September in every year,
forward to the Minister a report on the Commission's operations for the
preceding financial year.
(2) The report must
contain any information required by the regulations.
(3) The Minister must, within 6 sitting days after receiving a report
under this section, cause copies of the report to be laid before both Houses of
Parliament.
(1) The Chief Executive's functions in connection with the administration
of this Act include the following:
(a) to work with the Commission in the performance of its functions;
and
(b) to be responsible to the Commission for managing the Commission's
business efficiently and effectively;
(c) to be responsible for supervising any staff appointed to assist the
Commission.
(2) The Chief Executive has such other functions assigned to the Chief
Executive by the Commission or by or under this or any other Act.
(1) The Chief Executive may delegate any of the Chief Executive's
functions or powers under this Act.
(2) A delegation—
(a) may be made—
(i) to a particular person or body; or
(ii) to the person for the time being occupying a particular office or
position; and
(b) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(c) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(d) is revocable at will and does not derogate from the power of the Chief
Executive to act in any matter.
Division 3—Joint
planning arrangements
Subdivision 1—Planning
agreements
(1) Subject to this
section, the Minister may, after seeking or receiving the advice of the
Commission, enter into an agreement (a planning agreement),
relating to a specified area of the State, with any of the following
entities:
(a) any council that has its area, or part of its area, within the
specified area of the State;
(b) any other Minister who has requested to be a party to the
agreement;
(c) if the Minister thinks fit, any other entity (whether or not an agency
or instrumentality of the Crown) that has requested or agreed to be a party to
the agreement.
(2) A planning agreement must include provisions that outline the purposes
of the agreement and the outcomes that the agreement is intended to achieve and
may provide for—
(a) the setting of objectives, priorities and targets for the area covered
by the agreement; and
(b) the constitution of a joint planning board including, in relation to
such a board—
(i) the membership of the board, being between 3 and 7 members
(inclusive); and
(ii) subject to
subsection (3)
, the criteria for membership; and
(iii) the procedures to be followed with respect to the appointment of
members; and
(iv) the terms of office of members; and
(v) conditions of appointment of members, or the method by which those
conditions will be determined, and the grounds on which, and the procedures by
which, a member may be removed from office; and
(vi) the appointment of deputy members; and
(vii) the procedures of the board; and
(c) the delegation of functions and powers to the joint planning board
(including, if appropriate, functions or powers under another Act);
and
(d) the staffing and other support issues associated with the operations
of the joint planning board; and
(e) financial and resource issues associated with the operations of the
joint planning board, including—
(i) the formulation and implementation of budgets; and
(ii) the proportions in which the parties to the agreement will be
responsible for costs and other liabilities associated with the activities of
the board; and
(f) such other matters as the parties to the agreement think
fit.
(3) The criteria for
membership of a joint planning board must be consistent with any requirement of
the Minister that is intended to ensure that the members of the joint planning
board collectively have qualifications, knowledge, expertise and experience
necessary to enable the board to carry out its functions effectively.
(a) expires at the end of 10 years from the date of the agreement and
may, when it expires, be replaced by a new agreement (in the same or different
terms); and
(b) may be varied by
agreement between the parties to the agreement or may be
terminated—
(i) by agreement
between the parties to the agreement; or
(ii) by the Minister—
(A) on the ground that the Minister considers that there has been a
serious contravention or failure on the part of the joint planning board to
comply with a provision of this or any other Act, or a serious failure on the
part of the joint planning board to discharge a responsibility under this or any
other Act; or
(B) on the ground that the Minister considers that a serious irregularity
has occurred in the conduct of the affairs of the joint planning board or that
the joint planning board is not functioning effectively or acting appropriately;
or
(C) on any ground prescribed by the regulations.
(5) However, the Minister should only agree to the termination of an
agreement under
subsection (4)(b)(i)
if the Minister is satisfied that it is in the public interest to do
so.
(6) The regulations may—
(a) make provision for the form of planning agreements; and
(b) make provision in relation to the termination of planning agreements
(including for the transfer to other entities of matters being dealt with by a
joint planning board (or an assessment panel appointed by a joint planning
board) at the time of a termination); and
(c) make such other such provision as the Governor thinks fit in relation
to planning agreements.
(7) The Chief Executive must—
(a) maintain a register of planning agreements in force under this
Division; and
(b) publish the register on the SA planning portal.
(8) The Minister must, within 6 sitting days after a planning
agreement is entered into or varied under this section, cause copies of the
agreement or variation (as the case may be) to be laid before both Houses of
Parliament.
Subdivision 2—Joint
planning boards
(1) The Minister must, in connection with the commencement of a planning
agreement, by notice published in the Gazette, establish a joint planning board
in accordance with the terms of the agreement.
(2) A joint planning board—
(a) is a body corporate; and
(b) has the name assigned to it under the relevant planning agreement;
and
(c) is constituted in accordance with the terms of the relevant planning
agreement; and
(d) has the functions and powers assigned to it under this or any other
Act or conferred under the terms of the relevant planning agreement;
and
(e) must prepare and furnish annual reports in accordance with
requirements prescribed by the regulations.
(3) The Minister may, by further notice published in the Gazette, abolish
a joint planning board if the relevant planning agreement is
terminated.
37—Disclosure
of financial interests
A member of a joint planning board who is not a member of a council must
disclose his or her financial interests in accordance with
Schedule 1
.
(1) A joint planning board may establish such committees as the board
thinks fit to advise the board on any aspect of its functions, or to assist the
board in the performance of its functions or the exercise of its
powers.
(2) A joint planning board must establish a committee designated by the
relevant planning agreement if the planning agreement so requires.
(3) A committee may, but need not, consist of or include members of the
joint planning board.
(4) The procedures to be observed in relation to the conduct of business
of a committee will be—
(a) as determined by the joint planning board; or
(b) insofar as the procedure is not determined by the joint planning
board—as determined by the relevant committee.
(1) A joint planning board may establish a subsidiary—
(a) to carry out a specified activity or activities; or
(b) to perform a function or to exercise a power of the board under this
Act; or
(c) to hold or administer any land, facility or assets.
(2) The establishment of a subsidiary under this section is subject to
obtaining the approval of the Minister to the conferral of corporate status
under this Act.
(3) The establishment of a subsidiary does not derogate from the power of
the joint planning board to act in any matter.
(4)
Schedule 2
contains other provisions that are relevant to a subsidiary established
under this section.
(1) A joint planning board may delegate any of its functions or
powers.
(2) A delegation—
(a) may be made—
(i) to a particular person or body; or
(ii) to the person for the time being occupying a particular office or
position; and
(b) must in prescribed circumstances be made to a committee of the board
established in accordance with the requirements of the regulations;
and
(c) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(d) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(e) is revocable at will and does not derogate from the power of the board
to act in any matter.
Subdivision 3—Appointment
of administrator
41—Appointment
of administrator
(1) The Minister may appoint an administrator of a joint planning board
if—
(a) the Minister considers that the board is not operating effectively or
appropriately and that steps should be taken under this section until the matter
can be resolved; or
(b) the Minister has determined that the relevant planning agreement
should be terminated and considers that steps should be taken to appoint an
administrator under this section until the operations of the board can be wound
up; or
(c) the Minister considers that taking action under this section is
appropriate on any other reasonable ground.
(2) Before appointing an administrator under this section, the Minister
must consult with the other parties to the relevant planning
agreement.
(3) An administrator has, while the appointment remains in force, full and
exclusive power to perform the functions and exercise the powers of the joint
planning board.
(4) The remuneration of the administrator will be fixed by the Minister
and is payable from the joint planning board's funds.
(5) The members of the joint planning board are suspended from office
while an administrator holds office under this section.
(6) The Minister may revoke an appointment under this section when the
Minister considers it appropriate to do so.
Division 4—Practice
directions and practice guidelines
(1) The Commission may
issue practice directions for the purposes of this Act.
(2) Without limiting
any other provision that contemplates the issuing of a practice direction, a
practice direction may specify procedural requirements or steps in connection
with any matter arising under this Act.
(3) Without limiting
subsections (1)
and
(2)
, the Commission must, by practice direction to be applied under this Act,
establish a scheme with a view to ensuring that planning assessment or controls
undertaken or established under this Act (including through the imposition of
conditions under this Act) do not conflict with or duplicate matters that may be
dealt with or addressed under a licensing or other regulatory regime under
another Act.
(4) A practice direction—
(a) must be—
(i) notified in the Gazette; and
(ii) published on the SA planning portal; and
(b) may be varied or revoked by the Commission from time to time by a
further instrument—
(i) notified in the Gazette; and
(ii) published on the SA planning portal.
(5) A practice direction does not give rise to—
(a) any liability of, or other claim against, the Commission; or
(b) any right, expectation, duty or obligation that would not otherwise be
available to a person.
(1) The Commission
may, with the approval of the Minister, make practice guidelines with respect to
the interpretation, use or application of—
(a) the Planning Rules; or
(b) the Building Rules.
(2) Without limiting
subsection
(1)
, a practice guideline may—
(a) make a declaration as to the effect of a provision of the Planning
Rules or a provision of the Building Rules in a particular set of circumstances;
and
(b) specify variations that will, in relation to deemed-to-satisfy
development, constitute minor variations.
(3) If a relevant authority acts in accordance with a practice guideline,
the relevant authority will be taken, in the absence of proof to the contrary,
to be acting consistently with relevant provision of the Planning Rules or the
Building Rules (as the case may be).
(4) A practice guideline—
(a) must be—
(i) notified in the Gazette; and
(ii) published on the SA planning portal; and
(b) may be varied or revoked by the Commission from time to time by
further instrument—
(i) notified in the Gazette; and
(ii) published on the SA planning portal.
(5) A practice guideline does not give rise to—
(a) any liability for, or claim against, the Commission; or
(b) any right expectation, duty or obligation that would not otherwise be
available to a person.
Part 4—Community
engagement and information sharing
Division 1—Community
engagement
44—Community
Engagement Charter
(1) There must be a charter to be called the Community Engagement
Charter.
(2) The Minister is responsible for establishing and maintaining the
charter.
(3) The following principles must be taken into account in relation to the
preparation (or amendment) of the charter:
(a) members of the community should have reasonable, meaningful and
ongoing opportunities to participate in relevant planning processes;
(b) community engagement should be weighted towards engagement at an early
stage and scaled back when dealing with settled or advanced policy;
(c) information about planning issues should be in plain language, readily
accessible and in a form that facilitates community participation;
(d) participation methods should seek to foster and encourage constructive
dialogue, discussion and debate in relation to the development of relevant
policies and strategies;
(e) participation methods should be appropriate having regard to the
significance and likely impact of relevant policies and strategies;
(f) insofar as is reasonable, communities should be provided with reasons
for decisions associated with the development of planning policy (including how
community views have been taken into account).
(4) The charter—
(a) will relate to—
(i) public
participation with respect to the preparation or amendment of any statutory
instrument where compliance with the charter is contemplated by this Act;
and
(ii) without limiting
subparagraph (i)
, any other circumstance where compliance with the charter is contemplated
by this Act; and
(b) may relate to any other circumstances determined by the
Minister.
(a) establish
categories of statutory processes to which various parts of the charter will
apply; and
(b) in relation to
each category established under
paragraph (a)
—
(i) specify mandatory requirements; and
(ii) set out
principles and performance outcomes that are to apply to the extent that
mandatory requirements are not imposed; and
(c) in relation to performance outcomes under
paragraph (b)(ii)
—
(i) provide guidance on specific measurers or techniques by which the
outcomes may be achieved; and
(ii) set out measures to help evaluate whether, and to what degree, the
outcomes have been achieved.
(6) The charter must comply with any requirements prescribed by the
regulations.
(7) Despite a preceding subsection, the charter must not relate to the
assessment of applications for development authorisations under this Act in
addition to the other provisions of this Act that apply in relation to such
assessments.
(8) An entity to which the charter applies must—
(a) comply with any
mandatory requirement that applies in a relevant case; and
(b) to the extent that
paragraph (a)
does not apply, have regard to, and seek to achieve, any principles or
performance outcomes that apply in a relevant case.
(9) The Commission,
or an entity acting with the approval of the Commission, may adopt an
alternative way to achieving compliance with a requirement of the charter
(including a mandatory requirement or a requirement prescribed by the
regulations) if the Commission is satisfied that the alternative way is at least
effective in achieving public consultation as the requirement under the
charter.
(10) Despite a preceding subsection, the charter does not give rise to
substantive rights or liabilities (and a failure to comply with the charter does
not give rise to a right of action or invalidate any decision or process under
this Act).
(11) If, in the opinion of the Commission, an entity fails to comply with
the charter—
(a) the Commission may direct the entity to comply with the charter;
and
(b) if the direction is not complied with within a period prescribed by
the regulations—the Commission may take any action required by its
direction and recover the reasonable costs and expenses of so doing as a debt
from the entity that failed to comply with the direction.
45—Preparation
and amendment of charter
(1) A proposal to
prepare or amend the charter may be initiated by—
(a) the Minister; or
(b) the Commission acting on behalf of the Minister (at the direction or
with the approval of the Minister).
(2) The Commission
must, after a proposal is initiated under
subsection (1)
—
(a) prepare a draft of the proposal; and
(b) consult with—
(i) any entity specified by the Minister; and
(ii) any other entity prescribed by or under the regulations;
and
(c) ensure that a copy of the proposal is published on the SA planning
portal with an invitation for interested persons to make representations (in
writing or via the SA planning portal) on the proposal within a period specified
by the Commission.
(3) The Commission
must, after complying with
subsection (2)
, prepare a report on the matters raised during consultation (including
information about any change to the original proposal that the Commission
considers should be made) and furnish a copy of the report to the
Minister.
(a) adopt the charter, or the amendment to the charter (as the case may
be), as recommended in the report under
subsection (3)
; or
(b) make alterations to what is recommended in the report and then proceed
to adopt the charter or the amendment, as altered (as the case may be);
or
(c) determine that the matter should not proceed.
(5) The charter, or an amendment to the charter, adopted under
subsection (4)
—
(a) does not have
effect until it is published on the SA planning portal; and
(b) may take effect from the date of publication under
paragraph (a)
, or from a later date specified by the Minister.
(6) Despite a preceding subsection, the Minister may, by instrument
published on the SA planning portal, amend the charter—
(a) in order to make a change of form (without altering the effect of an
underlying policy reflected in the charter); or
(b) in order to take action which, in the opinion of the Minister, is
correcting an error.
(7) In addition,
the Commission must ensure that the various parts of the charter are reviewed at
least once in every 5 years according to a scheme approved by the
Minister.
(8) The outcome of
a review undertaken to comply with
subsection (7)
must be embodied in a written report furnished to the Minister.
(9) The Minister must, within 6 sitting days after receiving a report
under
subsection (8)
, cause copies of the report to be laid before both Houses of
Parliament.
Division 2—Online
planning services and information
(1) The Chief Executive is to establish and maintain a website for the
purposes of this Act (the SA planning portal).
(2) The SA planning portal—
(a) is intended to
facilitate the online delivery of services and information in connection with
the operation of this Act; and
(b) must include the documents and instruments that are required under
this Act to be published on the SA planning portal; and
(c) must include any other information, documents or materials specified
by the Commission; and
(d) must include any other information, documents or materials that are
required to be published on the SA planning portal by the regulations;
and
(e) may include such other information, documents or materials as the
Chief Executive thinks fit.
(3) The SA planning portal is to maintain (insofar as is reasonably
practicable) historical as well as current versions of documents, instruments or
materials required to be published on the SA planning portal.
(4) The SA planning portal must also include a facility that allows
members of the community to make submissions and provide feedback in relation to
matters that are subject to notification or consultation under this Act (subject
to complying with or observing any rules, requirements, restrictions or
exclusions determined by the Chief Executive for the purposes of this
subsection).
(1) The Chief Executive is to establish and maintain an electronic
database (the SA planning database) that produces, by gaining access
to—
(a) the state planning policies; and
(b) the Planning Rules; and
(c) any relevant land management agreements; and
(d) other instruments and documents as the Chief Executive thinks
fit,
textual and spatial information that identifies the planning policies,
rules and information that apply to specific places within the State under this
Act.
(2) The SA planning database must be accessible on the SA planning
portal.
48—Online
atlas and search facilities
(1) The Chief Executive
must establish and maintain, as part of the SA planning portal and in connection
with the SA planning database, an online atlas and search facility that allows a
person to search across the website and the database.
(2) Without limiting
subsection (1)
or any other provision of this Act, the online atlas must
include—
(a) a council-based zoning map or set of maps; and
(b) any other mapping product required by the Commission.
49—Standards
and specifications
(1) The Commission may
prepare and publish standards and specifications that are to apply to or in
relation to—
(a) the SA planning portal; and
(b) the SA planning database; and
(c) the online atlas and search facility.
(2) A standard or
specification under
subsection (1)
may include—
(a) technical requirements for any document, instrument or material that
is to be included on the SA planning portal or in connection with the SA
planning database; and
(b) requirements as to electronic files, including as to their formats;
and
(c) requirements as to the provision and certification of any document,
instrument or material, or as to any matter; and
(d) requirements as to the accessibility of the SA planning portal or
the SA planning database; and
(e) requirements as to the recording, management, preservation, storage,
archiving and (if appropriate) disposal of any document, instrument or material;
and
(f) other matters determined by the Commission.
(3) Subject to
complying with any standard or specification under
subsection (2)
, the SA planning portal and SA planning database may be maintained
(and the SA planning database compiled) as determined by the Chief
Executive.
(4) In addition to
subsection (3)
, the Chief Executive may—
(a) grant
authorisations to a person, or persons of a specified class, to deposit or amend
a document, instrument or other materials on the SA planning portal,
subject to such conditions or limitations as the Chief Executive thinks fit;
and
(b) specify requirements, protocols and guidelines that will apply in
relation to the administration of the SA planning portal.
(5) A person must not breach, or fail to comply with, a condition under
subsection (4)(a)
.
Maximum penalty: $20 000.
(6) The
State
Records Act 1997
does not apply to or in relation to a record (within the meaning of that
Act) that is received, created or held under this Division.
50—Certification
and verification of information
(1) A version of a statutory instrument published on the SA planning
portal and certified in accordance with any requirements prescribed by the
regulations by the Chief Executive (including a consolidation of a statutory
instrument as at a particular day) will be presumed, in the absence of proof to
the contrary, to be a complete and accurate record of the statutory instrument
(or the statutory instrument as amended or consolidated) and in force on the
relevant day specified on the SA planning portal (and so may be relied on for
the purposes of this Act).
(2) Any information produced on the SA planning database as to the
application of planning policies, rules and information to a specified place
within the State will be presumed, in the absence of proof to the contrary, to
be accurate and correct (and so may be relied on for the purposes of this
Act).
51—Online
delivery of planning services
The regulations may make provision for or with respect to the online
delivery of planning services and information in relation to such things
as—
(a) the lodging of applications, documents and information under this Act;
and
(b) the assessment of categories of development; and
(c) the issuing or registration of development authorisations;
and
(d) the provision or publication of information.
(1) Despite a preceding
section of this Division, the Minister may, after taking into account the advice
of the Commission, by notice published in the Gazette, issue a direction with
respect to prohibiting, restricting or limiting access to any document,
instrument or material on the SA planning portal on the ground
of—
(a) confidentiality or privacy; or
(b) safety or security (including the security, or future security, of a
building); or
(c) any other matter prescribed by the regulations.
(2) A direction under
subsection (1)
may provide access subject to conditions specified by the
direction.
(3) A person must not breach, or fail to comply with, a direction under
subsection (1)
or a condition under
subsection (2)
.
Maximum penalty: $20 000.
(4) The Minister may, by subsequent notice published in the Gazette, vary
or revoke a notice under this section.
The
Freedom
of Information Act 1991
does not apply to or in relation to a document (within the meaning of that
Act) that is received, created or held under this Division.
(1) The Chief Executive
may, with the approval of the Minister, impose fees and charges with respect to
gaining access to, or obtaining, information or material held under this
Division.
(2) The Chief Executive
may, with the approval of the Minister, require a council to make a
contribution, on a periodic or other basis, towards the costs of establishing or
maintaining—
(a) the SA planning portal; and
(b) the SA planning database; and
(c) any online atlas and search facility under this Division.
(3) Any fee, charge or contribution under
subsection (1)
or
(2)
may be—
(a) set on a differential basis; and
(b) varied from time to time by the Chief Executive with the approval of
the Minister.
(4) If a council fails to comply with a requirement under
subsection (2)
, the contribution payable by the council will be recoverable by the Chief
Executive as a debt.
(5) Nothing in this section limits or derogates from the power to set or
impose a fee or charge by regulation under this Act (and vice versa).
(1) The following
principles must be taken into account with respect to the instruments created
under this Part:
(a) duplication between instruments, and between the various layers of
policies and rules within instruments, is to be avoided;
(b) rules should be based on clear performance outcomes, may include
deemed to satisfy requirements, and should seek to apply excellence in design
practices and techniques;
(c) rules and standards should be proportionate, suited to relevant
conditions, and insofar as is reasonably practicable and appropriate, seek to
minimise regulatory burdens;
(d) any other principles prescribed by the regulations.
(2) Without limiting
subsection (1)
, any rule, standard or other material that is dealt with or that is more
suited to consideration under
Division 3
should not be included in an instrument under
Division 2
.
(3) If an inconsistency
exists between the Planning Rules and the Building Rules, the Building Rules
prevail and the Planning Rules do not apply to the extent of the
inconsistency.
(4)
Subsection (3)
does not apply—
(a) in relation to a State heritage place or a local heritage place;
or
(b) in relation to a matter excluded from the operation of that subsection
by the regulations.
Division 2—Planning
instruments
Subdivision 1—State
planning policies
56—Preparation
of state planning policies
(1) The Minister may prepare state planning policies.
(2) The state planning policies will collectively set out the State's
overarching goals or requirements for the planning system (to be given effect
through the other instruments under this Division).
(3) A state
planning policy may—
(a) include any
matter that is relevant to planning or development within the State by setting
out or including policies, objectives or principles that are to be applied under
the provisions of this Act or the terms of the state planning policy;
and
(b) include any
other matter considered appropriate by the Minister; and
(c) without limiting
paragraphs (a)
and
(b)
, make provision for or with respect to any other matter contemplated by
this or any other Act as being the subject of a state planning policy (to such
extent, or in such manner, as the Minister thinks fit).
(4) A state planning policy is not to be taken into account for the
purposes of any assessment or decision with respect to an application for a
development authorisation under this Act.
The Minister must ensure that there is a specific state planning policy (to
be called the design quality policy) that specifies design policies and
principles that are to be applied in the other instruments under this
Division.
The Minister must ensure that there is a specific state planning policy (to
be called the integrated planning policy) that specifies policies and
principles that are to be applied with respect to integrated land use, transport
and infrastructure planning.
59—Special
legislative schemes
(1) The Minister must,
after consultation with the Commission, by notice published in the Gazette,
establish a state planning policy with respect to each special legislative
scheme that—
(a) in the case of a character preservation law—addresses (and seeks
to preserve) the character values of each relevant character preservation area;
and
(b) in any other case—complies with requirements (if any) of the Act
in question; and
(c) addresses any other matter determined by the Minister to be relevant
to the operation or objects of the Act in question insofar as it interacts with,
or is relevant to, the operation and objects of this Act.
(2) The Minister may, after consultation with the Commission, by
subsequent notice published in the Gazette, amend a state planning policy under
subsection (1)
.
(3) The Minister must also, in acting under this section in relation to a
particular Act, consult with the Minister who is responsible for the
administration of that other Act.
(4) A state planning policy, or an amendment to a state planning policy,
under this section—
(a) does not have effect until it is published on the SA planning portal;
and
(b) takes effect without the need to take any other steps under this
Division and without the need to be approved under any other provision of this
Act; and
(c) does not need to be referred to the ERD Committee under this Part (and
so is not subject to disallowance).
(1) Subject to
subsection
(2)
, the Minister must prepare a regional plan for each planning
region.
(2) If a joint
planning board has been constituted in relation to an area of the State, the
regional plan for that area must be prepared by the joint planning board and the
Minister will prepare the regional plan for any balance of a planning region
that remains outside the area in relation to which the joint planning board has
been constituted.
(3) A regional plan must be consistent with any state planning policy
(insofar as may be relevant to the relevant region or area) and
include—
(a) a long-term vision (over a 15 to 30 year period) for the relevant
region or area, including provisions about the integration of land use,
transport infrastructure and the public realm; and
(b) maps and plans that relate to spatial patterns that are relevant to
the long-term vision; and
(c) such contextual information about the relevant region or area,
including forward projections and statistical data and analysis, as may be
determined by the Minister or required by a practice direction; and
(d) recommendations about the application and operation of the Planning
and Design Code in the relevant region or area; and
(e) a framework for the public realm or infrastructure located within the
relevant region or area; and
(f) any other information or material required—
(i) by another provision of this Act; or
(ii) by the regulations; or
(iii) in the case of a regional plan prepared by a joint planning
board—by the Minister.
(4) A regional plan may—
(a) be divided into various parts that relate to subregions; and
(b) include structure plans, master plans, concept plans or other similar
documents.
(5) A regional plan prepared by a joint planning board must comply with
any practice direction issued for the purposes of this Subdivision by the
Commission with the approval of the Minister.
(6) A regional plan is not to be taken into account for the purposes of
any assessment or decision with respect to an application for a development
authorisation under this Act (except to the extent provided by this
Act).
Subdivision 3—Planning
and Design Code
(1) There must be a Planning and Design Code.
(2) The Minister will be responsible for preparing and maintaining the
Planning and Design Code.
62—Key
provisions about content of code
(1) The Planning
and Design Code must set out a comprehensive set of policies, rules and
classifications which may be selected and applied in the various parts of the
State through the operation of the Planning and Design Code and the SA planning
database for the purposes of development assessment and related matters within
the State.
(2) In particular,
the Planning and Design Code will—
(a) incorporate a
scheme that includes the use of zones, subzones and overlays; and
(b) specify
policies and rules that will—
(i) govern the use and development of an area within a particular class of
zone; and
(ii) in relation to a subzone, set out additional policies or rules
relating to the character of a particular part of a zone; and
(iii) address specified or defined issues that may apply in any zone or
subzone (or a part of any zone or subzone), or across zones or subzones,
depending on the circumstances (overlays); and
(c) include definitions of land use and establish land use classes;
and
(d) make provision for or with respect to any other matter contemplated by
this Act as being included in the Planning and Design Code (to such extent, or
in such manner, as the Minister thinks fit); and
(e) include any other matter—
(i) prescribed by the regulations; or
(ii) considered appropriate by the Minister.
(3) In connection with
subsections (1)
and
(2)
—
(a) policies and rules for development in a zone, subzone or overlay
should be clear and straightforward; and
(b) if relevant, it should be clear which provisions in a zone are being
modified by a subzone or overlay and how those provisions are being modified;
and
(c) the only spatial layers to be used are zones, subzones and overlays;
and
(d) the provisions of the Planning and Design Code may provide guidance
for the development of the public realm; and
(e) any policy or rule under the Planning and Design Code may apply in
relation to development generally or any class of development; and
(f) the Planning and Design Code must comply with any principle prescribed
by the regulations or a state planning policy.
(4) The Planning and Design Code may include provisions that provide for
the adaptation or modification of the rules that apply in relation to a
specified zone or subzone or as an overlay, including by
permitting—
(a) the variation of a technical or numeric requirement within specified
parameters; and
(b) the variation of a requirement applying in a subzone, within specified
parameters, in order to recognise unique character attributes; and
(c) the adoption of options for development that are additional to those
provided in a zone or subzone or as an overlay.
(5) The Planning and Design Code may be accompanied by advisory material
in the form of planning or design manuals or guidelines.
(1) The Planning
and Design Code may designate a place as a place of local heritage value
if—
(a) it displays historical, economic or social themes that are of
importance to the local area; or
(b) it represents customs or ways of life that are characteristic of the
local area; or
(c) it has played an important part in the lives of local residents;
or
(d) it displays aesthetic merit, design characteristics or construction
techniques of significance to the local area; or
(e) it is associated with a notable local personality or event;
or
(f) it is a notable landmark in the area; or
(g) in the case of a tree (without limiting a preceding
paragraph)—it is of special historical or social significance or
importance within the local area.
(2) For the purposes of
subsection (1)
—
(a) a place will be taken to be any place within the meaning of the
Heritage
Places Act 1993
; and
(b) a designation of a place as a place of local heritage value must
nominate or identify the component or other item, feature or attribute that is
assessed as forming part of, or contributing to, the heritage significance of
the place; and
(c) the Minister may, after seeking the advice of the South Australian
Heritage Council, develop or adopt guidelines that are to be used in the
interpretation or application of the criteria set out in that
subsection.
(3) The Community Engagement Charter must include provisions that require
consultation with the owner of any land constituting a place—
(a) that is being proposed for inclusion in the Planning and Design Code
as a place of local heritage value; or
(b) that, under an amendment to the Planning and Design Code, is being
proposed as being subject to any heritage character or preservation policy that
is similar in intent or effect to a local heritage listing.
(1) The Planning
and Design Code may—
(a) declare a tree to be a significant tree if—
(i) it makes a significant contribution to the character or visual amenity
of the local area; or
(ii) it is indigenous to the local area, it is a rare or endangered
species taking into account any criteria prescribed by the regulations, or it
forms part of a remnant area of native vegetation; or
(iii) it is an important habitat for native fauna taking into account any
criteria prescribed by the regulations; or
(iv) it satisfies any criteria prescribed by the regulations; or
(b) declare a stand of trees to be significant trees if—
(i) as a group they make a significant contribution to the character or
visual amenity of the local area; or
(ii) they are indigenous to the local area, they are members of a rare or
endangered species taking into account any criteria prescribed by the
regulations, or they form, or form part of, a remnant area of native vegetation;
or
(iii) as a group they form an important habitat for native fauna taking
into account any criteria prescribed by the regulations; or
(iv) as a group they satisfy any criteria prescribed by the
regulations,
(and the declaration may be made on the basis that certain trees located at
the same place are excluded from the relevant stand).
(2) However, a declaration under
subsection (1)
must not be inconsistent with any criteria prescribed by the regulations
for the purposes of this subsection.
(3) For the purposes of
subsection (1)
, the Planning and Design Code must identify the location of a tree or
stand of trees in accordance with any requirements imposed by the
regulations.
Subdivision 4—Design
standards
(1) The Minister may prepare design standards that relate to the public
realm or infrastructure for the purposes of this Act.
(2) A design standard may supplement the Planning and Design Code
by—
(a) specifying design principles; and
(b) specifying design standards for the public realm or infrastructure;
and
(c) providing design guidance with respect to any relevant
matter.
(3) A design standard may—
(a) be linked to any spatial layer in the Planning and Design Code;
and
(b) apply to any location specified in the Planning and Design Code, an
infrastructure delivery scheme under
Part 13
Division 1
, or a scheme established under
Part 15
Division 2
.
(4) A design standard may be accompanied by advisory material in the form
of design manuals or guidelines.
Subdivision 5—Related
and common provisions
In this Subdivision—
designated instrument means—
(a) a state planning policy; or
(b) a regional plan; or
(c) the Planning and Design Code; or
(d) a design standard.
67—Incorporation
of material and application of instrument
A designated instrument may—
(a) be linked to other instruments and standards under this Act;
and
(b) refer to or incorporate wholly or partially and with or without
modification, a policy or other document prepared or published by a prescribed
body, either as in force at a specified time or as in force from time to time;
and
(c) be of general or limited application; and
(d) make different provision according to an area, or circumstances or
entities, to which it is expressed to apply; and
(e) other than in the case of a regional plan, provide that any matter or
thing is to be determined, dispensed with or regulated according to the
discretion of the Minister, the Commission, the Chief Executive or any other
specified body or person.
(1) A state planning policy or a regional plan is an expression of policy
formed after consultation within government and within the community and does
not affect rights and liabilities (whether of a substantive, procedural or other
nature).
(2) No action may be brought on the basis that an entity has acted in a
way that is inconsistent with a state planning policy or a regional
plan.
(3) The Planning and Design Code or a design standard is a public document
of which a court or tribunal will take judicial notice, without formal proof of
its contents.
(4) No action may be brought on the basis that another instrument is
inconsistent with a designated instrument
(1) A proposal to prepare a designated instrument may be initiated
by—
(a) the Minister; or
(b) the Commission acting on behalf of the Minister (at the direction of
or with the approval of the Minister); or
(c) in relation to a regional plan—a joint planning board.
(2) A proposal to amend
a designated instrument may be initiated by—
(a) the Minister; or
(b) the Commission acting on behalf of the Minister (at the direction of
the Minister or with the approval of the Minister); or
(c) with the approval
of the Minister—
(i) another Minister; or
(ii) the Chief Executive; or
(iii) another agency or
instrumentality of the Crown; or
(iv) a joint planning board; or
(vi) a provider of
essential infrastructure; or
(vii) in relation to
the Planning and Design Code or a design standard—a person who has an
interest in land and who is seeking to alter the way in which the Planning and
Design Code or a design standard affects that land.
(3) Without limiting any other provision, an agency or instrumentality of
the Crown may make an application under
subsection (2)(c)(iii)
in connection with being prescribed under
section 115
.
(4) An approval under
subsection (2)(c)
may be given by the Minister on the basis—
(a) that the person or entity given the approval will conduct the
processes specified in the succeeding subsections of this section himself,
herself or itself; or
(b) in the case of an approval under
subsection (2)(c)(vi)
or
(vii)
, that the Chief Executive will conduct the processes specified in the
succeeding subsections of this section on behalf of the relevant person or
entity.
(5) An approval of the Minister under
subsection (2)(c)
may be given on conditions—
(a) prescribed by the regulations; or
(b) specified by the Minister.
(6) A person or
entity authorised or approved under a preceding subsection (a designated
entity), after all of the requirements of those subsections have been
satisfied—
(a) may prepare a draft of the relevant proposal; and
(b) must comply with the Community Engagement Charter for the purposes of
consultation in relation to the proposal; and
(c) must consult with any person or body specified by the Minister and may
consult with any other person or body as the designated entity thinks fit;
and
(d) must carry out such investigations and obtain such information
specified by the Minister; and
(e) must comply with any requirement prescribed by the
regulations.
(7) The designated
entity must, after complying with
subsection (6)
, prepare a report in accordance with any practice direction that applies
for the purposes of this section (including information about any change to the
original proposal that the designated entity considers should be made) and
(except where the designated entity is the Minister) furnish a copy of the
report to the Minister.
(8) A designated
entity may enter into an agreement with a person for the recovery of costs
incurred by the designated entity in relation to an amendment of the Planning
and Design Code or a design standard under this section.
(9) After receiving
a report under
subsection (7)
—
(a) if the Minister thinks that the matter is significant—the
Minister may consult with the Commission; or
(b) in the case of an amendment where an agreement under
subsection (8)
for the recovery of costs in relation to the amendment has been entered
into—the Minister must consult with the Commission,
and the Minister may then—
(c) adopt the designated instrument, or the amendment of a designated
instrument (as the case may be), as outlined in the report under
subsection (7)
; or
(d) make alternations to what is outlined in the report and then proceed
to adopt the designated instrument or the amendment, as altered (as the case may
be); or
(e) in the case of an amendment—divide the amendment into separate
parts and then proceed to adopt 1 or more of those parts; or
(f) determine that the matter should not proceed.
(10) Subject to
this Act, the designated instrument, or the amendment of a designated
instrument, adopted under
subsection (9)
—
(a) in a case where the designated instrument is a state planning
policy—does not have effect unless or until it has been approved by the
Governor by notice published in the Gazette; and
(b) does not have
effect until it is published on the SA planning portal; and
(c) may take effect from the date of publication under
paragraph (b)
, or from a later date specified by the Minister.
(11) Subject to any practice direction issued by the Commission with the
approval of the Minister, a process under a preceding subsection may be
undertaken as a joint process that relates to 2 or more
instruments.
(1) A reference in
this section to a designated instrument includes a reference to an amendment to
a designated instrument.
(2) The Minister
must, within 28 days after a designated instrument takes effect, refer the
designated instrument to the ERD Committee.
(3) A designated instrument referred under this section must be
accompanied by a report prepared by the Commission that sets
out—
(a) the reason for the designated instrument; and
(b) information about the consultation that was undertaken in the
preparation of the designated instrument; and
(c) any other material considered relevant by the Commission;
and
(d) any other information or material prescribed by the
regulations.
(4) The ERD
Committee must, after receipt of a designated instrument under
subsection (2)
—
(a) resolve that it does not object to the designated instrument;
or
(b) resolve to
suggest amendments to the designated instrument; or
(c) resolve to object to the designated instrument.
(5) Subject to
subsection (7)
, if, at the expiration of 28 days from the day on which a designated
instrument was referred to the ERD Committee, the ERD Committee has not made a
resolution under
subsection (4)
, it will be conclusively presumed that the ERD Committee does not object
to the designated instrument and does not itself propose to suggest any
amendments to the designated instrument.
(6) Subject to
subsection (7)
, if the period of 28 days referred to in
subsection (5)
would, but for this subsection, expire in a particular case between
15 December in one year and 15 January in the next year (both days
inclusive), the period applying for the purposes of
subsection (5)
will be extended on the basis that any days falling on or between those
2 dates will not be taken into account for the purposes of calculating the
period that applies under
subsection (5)
.
(7) If the period
applying under
subsection (5)
, including by virtue of
subsection (6)
, would, but for this subsection, expire in a particular case sometime
between the day on which the House of Assembly is dissolved for the purposes of
a general election and the day on which the ERD Committee is reconstituted at
the beginning of the first session of the new Parliament after that election
(both days inclusive), the period will be extended by force of this subsection
so as to expire 28 days from the day on which the ERD Committee is so
reconstituted.
(8) If an amendment
is suggested under
subsection (4)
—
(a) the Minister
may, by notice published in the Gazette, proceed to make such an amendment;
or
(b) the Minister may report back to the ERD Committee that the Minister is
unwilling to make the amendment suggested by the ERD Committee (and, in such a
case, the ERD Committee may resolve that it does not object to the designated
instrument as originally made, or may resolve to object to the designated
instrument).
(9) The Minister must consult with the Commission before making an
amendment under
subsection (8)(a)
.
(10) If the ERD
Committee resolves to object to a designated instrument, copies of the
designated instrument must be laid before both Houses of Parliament.
(11) If either
House of Parliament passes a resolution disallowing a designated instrument laid
before it under
subsection (10)
, then the designated instrument will cease to have effect (and if the
designated instrument is in fact an amendment by virtue of the operation of
subsection (1)
, the relevant designated instrument will, from that time, apply as if it
had not been amended by that amendment).
(12) A resolution is not effective for the purposes of
subsection (11)
unless passed in pursuance of a notice of motion given within
14 sitting days (which need not fall within the same session of Parliament)
after the day on which the state planning policy was laid before the
House.
(13) If a resolution is passed under
subsection (11)
, notice of that resolution must immediately be published in the
Gazette.
(14) The preceding subsections do not apply in a particular case
if—
(a) the Minister has consulted with the ERD Committee before a
designated instrument , or an amendment to a designated instrument, has been
finalised; and
(b) the ERD Committee has resolved, on account of that consultation,
that the designated instrument or the amendment (as the case may be) need not be
referred to the ERD Committee if or when it has been approved by the
Governor.
71—Complying
changes—Planning and Design Code
(1) The Minister may
initiate or agree to an amendment to the Planning and Design Code under this
section if—
(a) the amendment comprises a change to—
(i) the boundary of a zone or subzone; or
(ii) the application of an overlay; and
(b) the amendment is consistent with a recommendation in the relevant
regional plan that, through the use of—
(i) specific maps or other spatial information; and
(ii) specific information about the changes that are being
proposed,
clearly and expressly identifies (in the opinion of the Minister) the
changes that are considered to be appropriate.
(2) The Minister has an
absolute discretion about whether or not to agree to an amendment under
subsection (1)
.
(3) An amendment under
this section is effected by an instrument deposited on the SA planning portal
for publication on the SA planning database (in accordance with requirements
established by the Chief Executive).
(4) An amendment under this section—
(a) takes effect from a date specified in the instrument under
subsection (3)
; and
(b) takes effect without the need to take any other steps under this
Division and without the need to be approved under any other provision of this
Act; and
(c) does not need to be referred to the ERD Committee under this Part (and
is not subject to disallowance).
72—Minor
or operational amendments
(1) The Minister may,
by notice published in the Gazette, amend a designated
instrument—
(a) in order to make a change of form (without altering the effect of an
underlying policy reflected in the designated instrument); or
(b) in order to take action which, in the opinion of the Minister,
is—
(i) addressing or removing irrelevant material or a duplication or
inconsistency (without altering the effect of an underlying policy reflected in
the designated instrument); or
(ii) correcting an error; or
(c) in order to provide consistency between the designated instrument and
any provision made by the regulations (including to provide information in a
designated instrument that relates to the content or effect of any regulation);
or
(d) in accordance with any plan, policy, standard, report, document or
code which—
(i) is prepared, adopted or applied under another Act; and
(ii) falls within a class prescribed by the regulations for the purposes
of this provision.
(2) The Minister may,
by notice published in the Gazette, amend a designated
instrument—
(a) in order to give effect to the adoption of, or an amendment to, a
precinct plan under the
Urban
Renewal Act 1995
; or
(b) in order to make such provision as the Minister thinks fit relating to
planning or development within a precinct or the revocation of a precinct under
the
Urban
Renewal Act 1995
; or
(c) in order to provide consistency between the designated instrument and
any development approval that has been granted by the Minister under
Part 7 Division 2
Subdivision 4
where the development to which the approval relates has been substantially
commenced or completed.
(3) Without limiting
subsection (1)
or
(2)
the Minister may, by notice published in the Gazette, amend the Planning
and Design Code—
(a) in order to include a State heritage place in the Planning and Design
Code; or
(b) in order to designate a place (or part of a place) that is (or has
been) a State heritage place as a place of local heritage value (on the basis of
a recommendation of the South Australian Heritage Council under the
Heritage
Places Act 1993
); or
(c) in order to designate a place (or part of a place) that is a place of
local heritage value as a State heritage place (on the basis of action taken by
the South Australian Heritage Council under the
Heritage
Places Act 1993
); or
(d) in order to remove a place that is no longer a State heritage place
from the Planning and Design Code; or
(e) in order to remove from the Planning and Design Code—
(i) a State heritage place or a local heritage place (as listed in the
Planning and Design Code); or
(ii) any other place listed in the Planning and Design Code (if relevant
to local heritage),
where the building or other item that gave rise to the relevant listing has
been demolished, destroyed or removed.
(4) An amendment under this section—
(a) takes effect from a date specified in the notice; and
(b) takes effect without the need to take any other steps under this
Division and without the need to be approved under any other provision of this
Act; and
(c) does not need to be referred to the ERD Committee under this Part
(and is not subject to disallowance).
(1) If the Minister
is of the opinion that it is necessary in the interests of the orderly and
proper development of an area of the State that an amendment to a regional plan,
the Planning and Design Code or a design standard should come into operation
without delay, the Minister may, at the same time as, or at any time after, the
amendment is released for public consultation under the Community Engagement
Charter under this Part, and without the need for any other consultation or
process, by notice published in the Gazette, declare that the amendment will
come into operation on an interim basis on a day specified in the
notice.
(2) If a notice has been published under
subsection (1)
, the amendment comes into operation on the day specified in the
notice.
(3) The Minister must, as soon as practicable after the publication of a
notice under
subsection (1)
, prepare a report on the matter and cause copies of that report to be laid
before both Houses of Parliament.
(4) An amendment
that has come into operation under this section ceases to
operate—
(a) if the
Minister, by notice published in the Gazette, terminates the operation of the
amendment; or
(b) if either House
of Parliament passes a resolution disallowing the amendment after copies of the
amendment have been laid before both Houses of Parliament under section 70;
or
(c) if the
amendment has not been adopted by the Minister under this Part within
12 months from the day on which it came into operation; or
(d) if the amendment is superseded by another amendment that comes into
operation under this Part.
(5) If an amendment ceases to operate by virtue of
subsection (4)(b)
or
(c)
, notice of that cessation must forthwith be published in the
Gazette.
(6) If an amendment ceases to operate by virtue of
subsection (4)(a)
,
(b)
or
(c)
, the regional plan, Planning and Design Code or design standard will, from
the date of cessation, apply as if it had not been amended by that
amendment.
Division 3—Building
related instruments
(1) The Building Code,
as in force from time to time, applies for the purposes of this Act but subject
to—
(a) any modifications
effected by variations, additions or exclusions for South Australia contained in
the Code; and
(b) any modifications effected by a Ministerial building standard under
this Division.
(2) In connection with
subsection (1)
, any modification to the Building Code as described in
subsection (1)(a)
will not take effect for the purposes of this Act—
(a) before a day on
which notice of the alteration is published by the Minister by notice published
in the Gazette; and
(b) if the Minister so specifies in a notice under
paragraph (a)
, until a day specified by the Minister.
75—Ministerial
building standards
(1) The Minister may,
by notice published in the Gazette, publish standards (Ministerial
building standards), that—
(a) relate to any aspect of—
(i) building work (including the regulation, control, restriction or
prohibition of building work); or
(ii) the design, construction, quality, safety, health, amenity,
sustainability or maintenance of buildings; or
(b) modify the Building Code as it applies under this Act.
(2) Without limiting
subsection (1)
, a Ministerial building standard may specify deemed-to-satisfy building
practices or techniques that will be taken to constitute compliance with the
Building Code.
(3) The Minister may, by subsequent notice published in the Gazette, vary
or revoke a Ministerial building standard under
subsection (1)
.
Division 1—Entities
constituting relevant authorities
76—Entities
constituting relevant authorities
Subject to this Act, the following will be relevant authorities:
(a) the Minister;
(c) an assessment
panel appointed by a joint planning board;
(d) an assessment
panel appointed by a council, but not—
(i) in respect of an area in relation to which—
(A) a planning agreement that envisages the appointment of an assessment
panel by the joint planning board under this section applies; or
(B) a regional assessment panel has been constituted; or
(ii) if a local assessment panel has been constituted by the Minister in
substitution for an assessment panel appointed by the council;
(e) any of the
following assessment panels constituted by the Minister:
(i) a combined assessment panel;
(ii) a regional assessment panel;
(iii) a local assessment panel;
(g) an accredited professional;
(h) a council.
77—Panels
established by joint planning boards or councils
(1) The following
provisions will apply in relation to an assessment panel appointed by a joint
planning board or a council (a designated authority) under
Division 1
:
(a) a designated authority may appoint more than 1 assessment panel
but, if it does so, the designated authority must clearly specify which class of
development each assessment panel is to assess;
(b) a designated authority must determine—
(i) the membership of the assessment panel, being no more than
5 members and, if the designated authority thinks fit, on the basis that
the assessment panel will be constituted by a different number of members
depending on the particular class of development that is being assessed by the
assessment panel; and
(ii) the procedures to be followed with respect to the appointment of
members; and
(iii) the terms of office of members; and
(iv) conditions of appointment of members, or the method by which those
conditions will be determined, (including as to their remuneration) and the
grounds on which, and the procedures by which, a member may be removed from
office; and
(v) the appointment of deputy members; and
(vi) who will act as the presiding member of the panel and the process for
appointing an acting presiding member;
(c) a person appointed as a member of an assessment panel must be an
accredited professional;
(d) a person who is a member of the Parliament of the State or a member of
a council is not eligible to be appointed as a member of an assessment
panel;
(e) a person appointed as a member of an assessment panel must disclose
his or her financial interests in accordance with
Schedule 1
;
(f) the procedures of an assessment panel must comply with any
requirements prescribed by the regulations;
(g) a member of an
assessment panel must not act in relation to a development if he or she has a
direct or indirect pecuniary interest in any aspect of the development or any
body associated with any aspect of the development;
(h) the designated authority that appoints an assessment panel will be
responsible for—
(i) arranging the staffing and support required for the purposes of the
operations of the panel; and
(ii) the costs and other liabilities associated with the activities of the
panel.
(2) Without limiting the effect of
subsection (1)(g)
, a person will be taken to have a pecuniary interest in a matter for the
purposes of the subsection if an associate of the person has an interest in the
matter.
(3) A person who contravenes
subsection (1)(g)
is guilty of an offence.
Maximum penalty: $20 000.
78—Panels
established by Minister
(1) The following
provisions will apply in relation to an assessment panel constituted by the
Minister under
Division 1
:
(a) the assessment
panel will be constituted by the Minister by notice published in the
Gazette;
(b) in relation to a combined assessment panel—the Minister may
constitute a combined assessment panel if the panel is to act as a relevant
authority under this Act and, at the same time, be involved in the assessment of
matters relevant to obtaining a licence, permission, consent, approval,
authorisation, certificate or other authority under another Act;
(c) in relation to a regional assessment panel—
(i) the Minister may, in accordance with
subparagraph (ii)
, constitute the panel in relation to an area or areas of the State
comprising parts or all of the areas of 2 or more councils and, if the
Minister so determines, a part or parts of the State that are not within the
area of a council; and
(ii) the Minister may
constitute a regional assessment panel if—
(A) 2 or more
councils request the Minister to constitute a regional assessment panel in
relation to their combined areas; or
(B) the Minister has, after seeking the views of the relevant councils,
determined that it is appropriate in the interests of orderly and effective
development assessment that a regional assessment panel be constituted in
relation to the areas of 2 or more councils (or parts of such areas);
(d) in relation to a local assessment panel—the Minister may only
constitute a local assessment panel if the Minister has determined, after
undertaking such investigations as the Minister thinks fit and consulting with
the relevant council, that an assessment panel appointed by a council has
consistently failed to comply with a requirement under this Act and that, in the
circumstances, the assessment panel appointed by the council should be removed
and an assessment panel appointed by the Minister substituted;
(e) the Minister may, in constituting an assessment panel, make provision
with respect to—
(i) the membership of the assessment panel, including—
(A) the number of members; and
(B) the procedures to be followed with respect to the appointment of
members; and
(C) the terms of office of members; and
(D) conditions of appointment of members (including their remuneration)
and the grounds on which, and the procedures by which, a member may be removed
from office; and
(E) the appointment of deputy members; and
(F) the appointment of the presiding member of the assessment panel and
the process for appointing an acting presiding member; and
(ii) the procedures of the assessment panel;
(f) a person who is a member of the Parliament of the State or a member of
a council is not eligible to be appointed as a member of an assessment
panel;
(g) a member of an assessment panel must disclose his or her financial
interests in accordance with
Schedule 1
;
(h) a member of an
assessment panel must not act in relation to a development if he or she has a
direct or indirect pecuniary interest in any aspect of the development or any
body associated with any aspect of the development;
(i) the costs associated with the activities of a local assessment panel
will be the responsibility of the relevant council and may be recovered from the
council by the Minister as a debt;
(j) the costs associated with the activities of a regional assessment
panel will be shared between the councils for the areas in relation to which the
regional assessment panel is constituted in accordance with a scheme set out in
the notice under
paragraph (a)
;
(k) the Minister may, by subsequent notice published in the Gazette, vary
or revoke a notice under
paragraph (a)
.
(2) Without limiting the effect of
subsection (1)(h)
, a person will be taken to have a pecuniary interest in a matter for the
purposes of the subsection if an associate of the person has an interest in the
matter.
(3) A person who contravenes
subsection (1)(h)
is guilty of an offence.
Maximum penalty: $20 000.
79—Appointment
of additional members
(1) An assessment
panel appointed or constituted under this Act may appoint 1 or 2 members to act
as additional members of the assessment panel for the purposes of dealing with a
matter that it must assess as a relevant authority under this Act.
(2) A person is not eligible to be appointed under
subsection (1)
unless the person holds a qualification, or has expertise or experience,
recognised by a practice direction made for the purposes of this
section.
(3) A person appointed under
subsection (1)
—
(a) will be, subject to
paragraph (b)
, taken to be a member of the assessment panel in all respects;
but
(b) will not be
able to vote on any matter arising for determination by the assessment
panel.
Division 3—Assessment
managers
The following provisions will apply in relation to an assessment manager
under
Division 1
:
(a) each assessment panel must have an assessment manager (but a person
may be appointed to be assessment manager for more than 1 assessment
panel);
(b) a person appointed as an assessment manager must be—
(i) an accredited professional; or
(ii) a person of a prescribed class;
(c) a person appointed as an assessment manager may (but need not) be an
officer or employee of a council or a public sector employee;
(d) an assessment manager will be appointed by—
(i) if the assessment panel was appointed by a joint planning
board—the joint planning board; and
(ii) if the assessment panel was appointed by a council—the chief
executive of the council; and
(iii) if the assessment panel is constituted by the Minister—the
Chief Executive,
and (subject to
paragraph (e)(i)
) an assessment manager will be responsible to the person who has made the
appointment for his or her performance;
(e) the functions of an
assessment manager include:
(i) acting as a
relevant authority as provided under this Act (and, in so acting, is not subject
to direction by an assessment panel or any other person);
(ii) being responsible for managing the staff and operations of the
assessment panel in relation to which the assessment manager has been appointed;
and
(iii) providing advice to the assessment panel (as appropriate);
and
(f) the designated authority that appoints an assessment panel will be
responsible for the costs and other liabilities associated with the activities
of the assessment manager.
Division 4—Accredited
professionals
(1) The Governor may, by regulations made on the recommendation of the
Minister acting in association with the Commissioner for Consumer Affairs,
establish an accreditation scheme with respect to persons who are to act (or who
are seeking to act) as accredited professionals for the purposes of this
Act.
(a) may make different provision according to the function or role that an
accredited professional is to perform under this Act, including in relation to
particular aspects of development assessment or control; and
(b) may provide for a term or a period of accreditation, and for the
suspension or cancellation of accreditation on specified grounds; and
(c) may specify terms or conditions of accreditation; and
(d) may provide for any aspect of the scheme to be administered or managed
by the Commissioner for Consumer Affairs, or by another person or body
prescribed by the regulations or specified by the Minister (and different
persons or bodies may administer or manage the scheme insofar as it will apply
to different classes or categories of accredited professional); and
(e) may provide that a person holding an accreditation, registration or
other form of authorisation or status under a scheme recognised by the
regulations will be taken to hold an accreditation under this section;
and
(f) may be amended
or substituted by the Governor from time to time by further regulations made on
the recommendation of the Minister acting in association with the Commissioner
for Consumer Affairs.
(3) If the regulations amend or substitute an accreditation scheme under
subsection (2)(f)
, the regulations may make additional provision of a saving or transitional
nature.
An accredited professional must, on making a decision of a prescribed kind
in relation to a proposed development or a particular aspect of a proposed
development—
(a) notify a prescribed body in accordance with the regulations of the
decision; and
(b) provide such information or documentation as may be prescribed by the
regulations or as the prescribed body may require.
Maximum penalty: $10 000.
(1) An accredited professional who has not completed the functions of a
relevant authority in relation to a particular development may not be removed
from his or her engagement as a relevant authority unless the Minister consents
to that removal.
Maximum penalty: $10 000.
(2) If an accredited professional resigns from an engagement as a relevant
authority or dies or becomes incapable for any other reason of carrying out the
functions of a relevant authority in respect of a particular development, the
matter may be referred to another relevant authority.
(1) An accredited professional must act in accordance with the public
interest.
Maximum penalty: $50 000.
(2) An accredited professional must not—
(a) perform any act or make any omission that results in a failure to
comply with this Act; or
(b) seek, accept or agree to accept a benefit from another person (whether
for himself or herself or for a third person) as a reward or inducement to act
against a provision of this Act; or
(c) act in a manner contrary to any other duty prescribed by the
regulations.
Maximum penalty: $50 000.
(3) An accredited professional who contravenes or fails to comply with a
provision of a code of conduct that applies to the accredited professional under
Schedule 3
is guilty of an offence.
Maximum penalty: $50 000.
(4) A person who improperly gives, offers or agrees to give a benefit to
an accredited professional or to a third person as a reward or inducement for an
act done or to be done, or an omission made or to be made, by the accredited
professional in the performance of a function under this Act is guilty of an
offence.
Maximum penalty: $50 000.
(5) An accredited professional must ensure that any development
authorisation given by the accredited professional is consistent with any other
development authorisation that has already been given in respect of the same
proposal.
Maximum penalty: $25 000.
(6) In this section—
benefit does not include a benefit that consists of
remuneration or any condition of appointment or employment properly attaching or
incidental to the work of an accredited professional under this Act.
85—Use
of term "building certifier"
An accredited professional who is qualified under the accreditation scheme
to assess development in respect of the Building Rules (and to perform other
functions relating to buildings and building work under this Act) may be known
as a building certifier (and this designation will, as appropriate, be
used for the purposes of this Act).
Division 5—Determination
of relevant authority
(1) Subject to any
other provision of this Act, an assessment panel will be a relevant authority in
relation to a proposed development as follows:
(a) where the
proposed development is to be undertaken within the area of a council then,
subject to the succeeding paragraphs, an assessment panel appointed by the
council is the relevant authority;
(b) despite
paragraph (a)
, where the proposed development is within the area of a council in respect
of which a local assessment panel has been appointed then, subject to the
succeeding paragraphs, the local assessment panel is the relevant
authority;
(c) despite a preceding paragraph, where the proposed development is
within an area of the State in relation to which a regional assessment panel has
been constituted then, subject to the succeeding paragraphs, the regional
assessment panel is the relevant authority;
(d) despite a preceding paragraph, where the proposed development is
within an area of the State in relation to which a planning agreement applies
and an assessment panel has been appointed by the joint planning board then,
subject to
paragraph (e)
, that assessment panel is the relevant authority;
(e) despite a preceding
paragraph, where the proposed development is a matter designated by the
Minister, by notice published in the Gazette, as being a matter that will be
assessed by a combined assessment panel then the combined assessment panel is
the relevant authority.
(2) This section does not apply in a case where—
(a) an assessment manager; or
(b) an accredited professional,
may act as a relevant authority under a scheme prescribed by the
regulations for the purposes of this section.
(3) This section does not apply in a case where
section 87
or
section 88
applies.
87—Relevant
authority—Commission
(1) Subject to any
other provision of this Act (other than
section 86
), the Commission will be a relevant authority in relation to a proposed
development as follows:
(a) where the
proposed developed falls within a class of development—
(i) designated by the Planning and Design Code for the purposes of this
paragraph; or
(ii) prescribed by the regulations for the purposes of this
paragraph;
(b) where the proposed development is classified as restricted development
by the Planning and Design Code;
(c) where the proposed development is to be undertaken in a part of the
State that is not (wholly or in part) within the area of a council, other than
in a case where a regional assessment panel has been constituted in relation to
that part of the State;
(d) where the Commission, and an assessment panel appointed by a council
or by the Minister in substitution for such an assessment panel, would, apart
from this provision, both be constituted as relevant authorities in relation to
the proposed development;
(e) where the Commission and an assessment panel appointed by a joint
planning board would, apart from this provision, both be constituted as relevant
authorities in relation to the proposed development;
(f) where the Commission and a regional assessment panel would, apart from
this provision, both be constituted as relevant authorities in relation to the
proposed development;
(g) where the Minister, acting at the request of a council or a joint
planning board, declares, by notice served on the proponent, that the Minister
desires the Commission to act as the relevant authority in relation to the
proposed development;
(h) where the Minister,
by notice served on the proponent, calls the proposed development in for
assessment under this paragraph on a ground set out in
subsection (2)
.
(2) Any of the
following grounds apply for the purposes of
subsection (1)(h)
:
(a) the Minister
considers that the proposed development is of significance to the State because,
in the opinion of the Minister—
(i) the development is of major social, economic or environmental
importance; or
(ii) the development involves benefits, impacts or risks that are of
significance to the State; or
(iii) the cumulative effect of the development, when considered in
conjunction with any other development, project or activity already being
undertaken or carried on, or proposed to be undertaken or carried on, at or
within the vicinity of the relevant site, gives rise to issues that are of
significance to the State; or
(iv) the development is directly related to—
(A) a development that has already been called in by the Minister under
this section; or
(B) a development that is considered by the Minister as being of
significance to the State;
(b) the Minister
considers that the proposed development—
(i) would have a significant impact on a matter arising under another Act;
or
(ii) will require assessment or approval under another Act as well as this
Act;
(c) the Minister
considers that the proposed development would have a significant impact beyond
the boundaries of a particular planning region or a particular
council;
(d) the Minister considers that the proposed development may have a
significant impact on an aspect of a precinct under Part 2B of the
Urban
Renewal Act 1995
;
(e) an assessment panel appointed by a council or a joint planning board,
or a regional assessment panel, has (in the opinion of the Minister) failed to
deal with an application for development authorisation within a reasonable
period;
(f) the proposed development involves land situated in more than
1 planning region or the area of more than 1 council;
(g) the Minister considers that it is otherwise necessary or appropriate
for the proper assessment of the proposed development that the proposed
development be assessed by the Commission.
(3) If the Minister acts under
subsection (1)(h)
—
(a) a relevant authority already acting in relation to the proposed
development under another paragraph of
subsection (1)
must, at the request of the Commission, provide the Commission with a
report relating to any application for development authorisation that has been
under consideration by the relevant authority; and
(b) the Commission in acting as the relevant authority in relation to the
particular proposed development may, as it thinks fit, do either or both of the
following:
(i) adopt any assessment, finding or determination that was made by a
relevant authority that has been acting in relation to the proposed
development;
(ii) continue to assess the proposed development from the stage reached
immediately before the Minister acted under that subsection.
(4) This section does not apply in a case where
section 88
applies.
88—Relevant
authority—Minister
Where a proposed development is classified as impact assessed development
(other than restricted development) then the Minister is the relevant
authority.
89—Relevant
authority—assessment managers
An assessment manager may act as a relevant authority—
(a) in cases contemplated by this Act; and
(b) in cases prescribed or authorised by the regulations.
90—Relevant
authority—accredited professionals
An accredited professional may act as a relevant authority—
(a) in cases contemplated by this Act; and
(b) in cases prescribed or authorised by the regulations.
91—Relevant
authority—councils
A council will act as a relevant authority as provided by
section 92
.
(a) a proposed
development involves the performance of building work; and
(b) a relevant
authority determines to act under this subsection,
the relevant authority may—
(c) refer the
assessment of the development in respect of the Building Rules to the council
for the area in which the proposed development is to be undertaken; or
(d) require that the
assessment of the development in respect of the Building Rules be undertaken by
a building certifier.
(2) If
subsection (1)
applies—
(a) in the case of
subsection (1)(c)
—the council for the area in which the development is to be
undertaken will be the relevant authority for the purposes of—
(i) assessing the development against and, if appropriate, granting a
consent in respect of, the relevant provisions of the Building Rules;
and
(ii) if appropriate, granting development approval; and
(b) in the case of
subsection (1)(d)
—
(i) the building certifier will be the relevant authority for the purposes
of assessing the development against and, if appropriate, granting a consent in
respect of, the relevant provisions of the Building Rules; and
(ii) the council for the area in which the development is to be undertaken
will be the relevant authority for the purposes of, if appropriate, granting
development approval.
(3) In addition, where a proposed development is to be undertaken within
the area of a council then, subject to the regulations, the council will be the
relevant authority for the purposes of, if appropriate, granting the final
development approval after all elements of the development have been assessed by
1 or more relevant authorities under this section.
(1) A relevant authority may delegate any functions or powers of the
relevant authority under this Act.
(2) A delegation—
(a) may be made—
(i) to a particular person or body; or
(ii) to the person for the time being occupying a particular office or
position; and
(b) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(c) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(d) is revocable at will and does not derogate from the power of the
relevant authority to act in any matter.
Part 7—Development
assessment—general scheme
94—Development
must be approved under this Act
Subject to this Act, no development may be undertaken unless the
development is an approved development.
95—Matters
against which development must be assessed
(1) Subject to this
Act, a development is an approved development if, and only if, a relevant
authority has assessed the development against, and granted a consent in respect
of, each of the following matters (insofar as they are relevant to the
particular development):
(a) the requirement
that the development is assessed as being appropriate after taking into
account—
(i) the relevant provisions of the Planning Rules; and
(ii) to the extent provided by
Part 7
Division 2
—the impacts of the development,
(planning consent);
(b) the relevant
provisions of the Building Rules (building consent);
(c) in relation to a proposed division of land (otherwise than under the
Community
Titles Act 1996
or the
Strata
Titles Act 1988
)—the requirement that the following conditions be satisfied (or will
be satisfied by the imposition of conditions under this Act):
(i) requirements set out in the Planning and Design Code made for the
purposes of this provision are satisfied;
(ii) any relevant requirements set out in a design standard has been
satisfied;
(iii) the requirements of a water industry entity under the
Water
Industry Act 2012
identified under the regulations relating to the provision of water supply
and sewerage services are satisfied;
(iv) where land is to be vested in a council or other authority—the
council or authority consents to the vesting;
(v) requirements set out in regulations made for the purposes of this
provision are satisfied;
(d) in relation to
a division of land under the
Community
Titles Act 1996
or the
Strata
Titles Act 1988
—the requirement that the following conditions be satisfied (or will
be satisfied by the imposition of conditions under this Act):
(i) requirements set out in the Planning and Design Code made for the
purposes of this provision are satisfied;
(ii) any relevant requirements set out in a design standard has been
satisfied;
(iii) any encroachment
of a lot or unit over other land is acceptable having regard to any provision
made by the Planning and Design Code or a design standard;
(iv) where land is to be vested in a council or other authority—the
council or authority consents to the vesting;
(v) a building or item intended to establish a boundary (or part of a
boundary) of a lot or lots or a unit or units is appropriate for that
purpose;
(vi) the division of land under the
Community
Titles Act 1996
or the
Strata
Titles Act 1988
is appropriate having regard to the nature and extent of the common
property that would be established by the relevant scheme;
(vii) the requirements of a water industry entity under the
Water
Industry Act 2012
identified under the regulations relating to the provision of water supply
and sewerage services are satisfied;
(viii) any building
situated on the land complies with the Building Rules;
(ix) requirements set out in the regulations made for the purposes of this
provision are satisfied;
(e) any encroachment of
a building over, under, across or on a public place (and not otherwise dealt
with above) is acceptable having regard to any provision made by the Planning
and Design Code or a design standard;
(f) if relevant—requirements applying under
Part 15
Division 2
are satisfied;
(g) such other matters as may be prescribed.
(2) An application may be made for all or any of the consents required for
the approval of a proposed development, or for any 1 or more of those
consents.
(3) A relevant
authority may, in relation to granting a planning consent, on its own initiative
or on application, reserve its decision on a specified matter or reserve its
decision to grant a planning consent—
(a) until further assessment of the relevant development under this Act;
or
(b) until further assessment or consideration of the proposed development
under another Act; or
(c) until a licence, permission, consent, approval, authorisation,
certificate or other authority is granted, or not granted (by the decision of
another authority), under another Act.
(4) A relevant
authority must allow any matter specified by the Planning and Design Code for
the purposes of this subsection to be reserved on the application of the
applicant.
(5) Any matter that is not fundamental to the nature of the relevant
development may, subject to the Planning and Design Code, be reserved under
subsection (3)
or
(4)
.
(6) To avoid doubt, in relation to a proposed development that requires
more than 1 consent under this Act, the consents need not be granted in any
particular order.
(7) To avoid doubt, if a development involves 2 or more elements that will
together require planning consent, each element may be assessed separately
(including by different relevant authorities) and granted a planning consent
with respect to that particular element.
(8) A development will be taken to be an approved development when all
relevant consents have been granted and a relevant authority has, in accordance
with this Act, indicated that the development is approved.
(9) The provisions of the Building Rules that are relevant to the
operation of
subparagraph (viii)
are the provisions of the Building Rules as in force at the time the
application was made for consent in respect of the matters referred to in that
paragraph.
(10) An entity that has the care, control and management of a public place
that is subject to an encroachment that is approved under
subsection (1)(d)(iii)
or
(e)
may impose a reasonable charge on account of the encroachment that occurs
when the relevant development is undertaken.
Subdivision 1—Categories
of development
Development will be divided into 3 categories for the purposes of
assessment in relation to planning consent as follows:
(a) accepted development;
(b) code assessed development;
(c) impact assessed development.
Subdivision 2—Accepted
development
(1) Development falls within the category of accepted development if it is
classified by the Planning and Design Code or the regulations as accepted
development.
(2) Accepted development does not require planning consent.
Subdivision 3—Code
assessed development
Development falls within the category of code assessed development
if—
(a) it is classified by the Planning and Design Code as
deemed-to-satisfy development; or
(b) it—
(i) does not fall within the category of accepted development;
and
(ii) does not fall within the category of impact assessed
development.
99—Deemed-to-satisfy
assessment
(1) If a proposed development is classified as deemed-to-satisfy
development, the development must be granted planning consent.
(2) If a relevant
authority is satisfied that development is deemed-to-satisfy development except
for 1 or more minor variations, the relevant authority must assess it as being
deemed-to-satisfy (and that determination will then have effect for the purposes
of this Act).
(3) A planning consent under this section must be granted without
undertaking a process for public notification or submissions in relation to the
proposed development.
(4) A planning consent
under this section will apply subject to conditions imposed under this Act and
subject to such conditions or exceptions as may be prescribed by the regulations
or the Planning and Design Code, and subject to any other provision made by this
Act or applying under the regulations.
(5) A condition under
subsection (4)
may provide that a proposed development assessed under
subsection (2)
will be undertaken so as to address any minor variation in order to make
it consistent with the deemed-to-satisfy requirement.
(6) Nothing in this section requires the assessment of an element of a
development that may be classified as accepted development.
100—Performance
assessed development
(1) In a case where
proposed development is to be assessed as code assessed development and the
development cannot be assessed, or fully assessed, as deemed-to-satisfy
development, the development will be assessed on its merits against the Planning
and Design Code.
(2) In connection with
subsection (1)
—
(a) to the extent that
1 or more elements of the proposed development may be classified as
deemed-to-satisfy under the Planning and Design Code (if any)—that
part of the development will be taken to have been granted planning consent;
and
(b) to the extent that
paragraph (a)
does not apply (including on the basis that that paragraph does not apply
at all)—the development will be assessed on its merits against the
Planning and Design Code.
(3) If a proposed
development is to be assessed under this section—
(a) subject to a
decision of a relevant authority made in accordance with a practice direction,
notice of the application for planning consent must be given, in accordance with
the regulations, to—
(i) an owner or occupier of each piece of adjacent land; and
(ii) members of the public by notice placed on the relevant land;
and
(b) a person may, in
accordance with the regulations and within a period prescribed by the
regulations, make representations to the relevant authority in relation to the
granting or refusal of planning consent; and
(c) if a representation
is made under
paragraph (b)
(being a representation received in accordance with the regulations and
within a period prescribed by the regulations), the relevant authority must
forward to the applicant a copy of the representation and allow the applicant to
respond, in accordance with the regulations and within a period prescribed by
the regulations, to those representations.
(a) any notice required under
subsection (3)(a)
; and
(b) any representation under
subsection (3)(b)
,
must be limited to what should be the decision of the relevant authority as
to planning consent in relation to the performance based elements of the
development as assessed on its merits (and a relevant authority should limit the
matters that it will take into account in the same way).
(5) In addition, a representation that is not made in accordance with any
requirement prescribed by the regulations for the purposes of this section is
not required to be taken into account under this section.
(6) The Planning and Design Code may exclude specified classes of
development from the operation of
subsections (3)
and
(4)
.
(7) A planning consent under this section will apply subject to conditions
imposed under this Act and subject to such conditions or exceptions as may be
prescribed by the regulations or the Planning and Design Code, and subject to
any other provision made by this Act or applying under the
regulations.
(8) To avoid doubt, the fact that 1 or more elements of a proposed
development may be classified as deemed-to-satisfy does not prevent a
relevant authority deciding not to grant planning consent on account of the
assessment of the balance of the development under this section.
(9) A practice direction may specify the form of any notice to be given
under this section.
(10) Nothing in this section requires the assessment of an element of a
development that may be classified as accepted development
Subdivision 4—Impact
assessed development
(1) Development falls
within the category of impact assessed development if—
(a) it is classified by the Planning and Design Code as restricted
development; or
(b) it is classified by the regulations as impact assessed
development; or
(c) it is declared by
the Minister as being impact assessed development.
(2) A declaration under
subsection (1)(c)
—
(a) is made by notice
published—
(ii) on the SA planning portal; and
(b) to avoid doubt, may be made in relation to—
(i) a development specified in the notice; or
(ii) a kind of development specified in the notice (either in the State
generally, or in a specified part of the State); or
(iii) development generally within a specified part of the
State.
(3) A declaration under
subsection (1)(c)
does not extend to development lawfully commenced by substantial work on
the site of the development before publication of the notice published in the
Gazette under
subsection (2)(a)(i)
.
(4) The Minister may vary or revoke a declaration under
subsection (1)(c)
by further notice published—
(b) on the SA planning portal.
(5) A reference to development in connection with the operation of
subsection (1)(c)
extends to a project and, if a declaration is made under that subsection
in relation to a project, a reference to "development" in the following sections
of this Division specified by the regulations will be taken to include a
reference to a project (subject to any modifications prescribed by the
regulations).
(6) The prescribed fee is payable in accordance with the regulations when
a development or project comes within the ambit of a declaration under
subsection (1)(c)
.
102—Practice
direction to provide guidance
(1) In connection with
the operation of this Subdivision, the Commission must publish a practice
direction with respect to—
(a) in relation to restricted development—
(i) the circumstances under which the Commission will be prepared to
assess restricted development; and
(ii) if an assessment is to be undertaken—how the Commission will
proceed with the assessment (including requirements as to the information that
must be provided by an applicant for a development authorisation and the other
steps that an applicant must take); and
(b) in relation to
impact assessed development (not being restricted development)—
(i) requirements as to the preparation of an EIS, including the level of
detail that an EIS must address with respect to various classes of development;
and
(ii) any other requirements for assessing the level of impact of a
development that is to be assessed as impact assessed development; and
(iii) the information that must be provided by the proponent at the
various stages assessed under this Act; and
(c) any other matter prescribed by the regulations.
(2) The Commission must, in acting under
subsection (1)
—
(a) take into account principles and requirements prescribed by the
regulations; and
(b) in relation to
subsection
(1)(b)
, classify the issues identified by the Commission as being relevant to the
proper assessment of development according to categories of importance so as to
indicate the levels of attention that should be given to those issues in the
preparation of an EIS.
(1) The Commission will determine, in relation to proposed development
classified as restricted development, whether or not the development will be
assessed and, if so, whether or not planning consent will be granted, and in
doing so will act as the relevant authority under this Act.
(2) Subject to this
section, if proposed development is to be assessed as restricted
development—
(a) notice of the
application for planning consent must be given, in accordance with the
regulations, to—
(i) an owner or occupier of each piece of adjacent land; and
(ii) any other owner or occupier of land which, according to the
determination of the Commission, would be directly affected to a significant
degree by development if it were to proceed; and
(iii) any other person of a prescribed class; and
(iv) the public generally, including by notice placed on the relevant
land; and
(b) a person who is
interested in doing so may, in accordance with the regulations and within a
period prescribed by the regulations, make representations to the Commission in
relation to the granting or refusal of planning consent; and
(c) if a representation
is made under
paragraph (b)
(being a representation received in accordance with the regulations and
within a period prescribed by the regulations)—
(i) the Commission must forward to the applicant a copy of the
representation and allow an applicant to respond, in accordance with the
regulations and within a period prescribed by the regulations, to those
representations; and
(ii) the Commission must allow the person who made the representation and
who, as part of that representation, indicated an interest in appearing before
the Commission, a reasonable opportunity to appear personally or by
representative before it to be heard in support of the representation and, if
the person so appears, the Commission must also allow the applicant a reasonable
opportunity, on request, to appear personally or by representative before it in
order to respond to any relevant matter.
(3) The Commission may dispense with any requirement under
subsection (2)(a)
if the Commission considers that the giving of a notice envisaged by that
subsection is unnecessary in the circumstances of the particular case.
(4) Except as otherwise provided by the regulations, the subject matter
of—
(a) any notice required under
subsection (2)(a)
; and
(b) any representation under
subsection (2)(b)
; and
(c) any submissions made by a person who has made a representation under
subsection (2)(c)
,
must be limited to what should be the decision of the Commission as to
planning consent in relation to the development.
(5) A representation that is not made in accordance with any requirement
prescribed by the regulations for the purposes of this section is not required
to be taken into account under this section.
(6) If a person makes a
representation under
subsection (2)(b)
in relation to any development under this section, the Commission
must—
(a) give the person notice of—
(i) its decision on the application for development; and
(ii) the date of the decision; and
(iii) the person's appeal rights under this Act; and
(b) give to the Court notice of—
(i) its decision on the application for development; and
(ii) the date of the decision; and
(iii) the names and addresses of the person or persons who made
representations to the Commission under that subsection.
(7) An appeal against a decision on a development classified as restricted
development by a person who is entitled to be given notice of the decision under
subsection (6)
must be commenced within 15 development agreements after the date of
the decision.
(8) If an appeal is lodged against a decision on a development classified
as restricted development by a person who is entitled to be given notice of the
decision under
subsection (6)
, the applicant for the relevant development authorisation must be notified
by the Court of the appeal and will be a party to the appeal.
(9) A decision of the Commission in respect of a development classified as
restricted development in respect of which representations have been made under
this section does not operate—
(a) until the time within which any person who made any such
representation may appeal against a decision to grant the development
authorisation has expired; or
(b) if an appeal is commenced—
(i) until the appeal is dismissed, struck out or withdrawn; or
(ii) until the questions raised by the appeal have been finally determined
(other than any question as to costs).
(10) The Commission may refuse to grant planning consent in relation to
any development that is to be assessed as restricted development at any time
(and before or during any step outlined above).
(11) The Commission must, if it makes an assessment under this section in
relation to any restricted development, take into account the relevant
provisions of the Planning and Design Code (but is not bound by those
provisions).
(12) A planning consent under this section will apply subject to
conditions imposed under this Act and subject to such conditions or exceptions
as may be prescribed by the regulations or the Planning and Design Code, and
subject to any other provision made by this Act or applying under the
regulations.
(13) To avoid doubt, the fact that 1 or more elements of a proposed
development may be classified as deemed-to-satisfy does not prevent the
Commission deciding not to grant planning consent on account of the assessment
of the development under this section.
(14) The Commission may determine the form of any notice to be given under
this section.
104—Impact
assessment by Minister—procedural matters
(1) This section applies in relation to impact assessed development (not
being restricted development).
(2) In a case where this section applies—
(a) any application under
Division 4
that relates to a development within the ambit of the relevant regulation
or declaration automatically lapses and any relevant documentation that has been
lodged with a relevant authority under that Division must be transmitted to the
Minister in accordance with the regulations; and
(b)
Division 4
and
Division 5
will not apply in relation to a development within the ambit of the
relevant regulation or declaration; and
(c) subject to
section 101(3)
, any development authorisation previously given under this Part in
relation to a development within the ambit of the relevant regulation or
declaration ceases to have effect (unless otherwise provided by the
regulations); and
(d) a proponent must lodge with the Minister an application that complies
with the following requirements:
(i) the application must be in a form determined by the
Minister;
(ii) the application must include, or be accompanied by, any documents,
assessments or information required by a practice direction published by the
Commission in connection with this Subdivision;
(iii) the application must be accompanied by such plans, drawings,
specifications or other documents as may be required by the Minister;
and
(e) an EIS must be prepared in relation to the proposed
development.
(3) The Minister may subsequently require the proponent to provide such
additional documents, assessments or information (including calculations and
technical requirements) as the Minister thinks fit.
(4) The Minister will determine whether or not planning consent will be
granted under this Act in relation to proposed development in a case where this
section applies and, in doing so, will act as the relevant authority under this
Act.
(5) Nothing in this section limits the operation of
section 108(2)(a)
.
The Commission will determine the level of detail required in relation to
an EIS after taking into account—
(a) a practice direction published by the Commission in connection with
this Subdivision; and
(b) any views expressed by a person or body prescribed by the regulations
for the purposes of this paragraph; and
(c) any views expressed by the proponent after consultation in accordance
with the regulations.
(1) This section applies if an EIS must be prepared in relation to a
proposed development.
(2) The Minister will, after consultation with the
proponent—
(a) require the proponent to prepare the EIS; or
(b) determine that the Minister will arrange for the preparation of the
EIS.
(3) The EIS must be prepared in accordance with a practice direction
published by the Commission in connection with this Subdivision.
(4) The EIS must,
subject to any practice direction, include a statement of—
(a) the expected environmental, social and economic effects of the
development;
(b) the extent to which the expected effects of the development are
consistent with the provisions of—
(i) any relevant state planning policy; and
(ii) the relevant regional plan; and
(iii) the Planning and Design Code; and
(iv) any matters prescribed by the regulations;
(c) if the development involves, or is for the purposes of, a prescribed
activity of environmental significance as defined by the
Environment
Protection Act 1993
, the extent to which the expected effects of the development are
consistent with—
(i) the objects of the
Environment
Protection Act 1993
; and
(ii) the general environmental duty under that Act; and
(iii) relevant environment protection policies under that Act;
(d) if the development
is to be undertaken within an area of the State that is specifically subject to
a special legislative scheme—the extent to which the expected effects of
the development are consistent with the state planning policy that specifically
relates to that special legislative scheme;
(e) the proponent's commitments to meet conditions (if any) that should be
observed in order to avoid, mitigate or satisfactorily manage and control any
potentially adverse effects of the development on the environment or any matter
that may be directly relevant to a special legislative scheme;
(f) other particulars in relation to the development
required—
(i) by the regulations; or
(ii) by the Minister.
(5) After the EIS
has been prepared, the Minister—
(a) —
(i) must, if the EIS relates to a development that involves, or is for the
purposes of, a prescribed activity of environmental significance as defined by
the
Environment
Protection Act 1993
, refer the EIS to the Environment Protection Authority; and
(ii) must, in a case where
subsection (4)(d)
applies in relation to a special legislative scheme—refer the EIS to
the Minister who is responsible for the administration of the Act in question;
and
(iii) must refer the EIS to the relevant council (or councils), and to any
prescribed authority or body; and
(iv) may refer the EIS to such other authorities or bodies as the Minister
thinks fit,
for comment and report within the time prescribed by the regulations;
and
(i) that copies of the EIS are available for public inspection and
purchase (during normal office hours) for at least a period specified or
determined under the practice direction published by the Commission in
connection with this Subdivision at a place or places determined by the Minister
and, by public notice, give notice of the availability of copies of the EIS and
invite interested persons to make written submissions to the Minister on the EIS
within the time determined under the practice direction referred to above;
and
(ii) that a copy of the EIS is published on the SA planning
portal.
(6) The Minister may undertake, or require the proponent to undertake, any
other consultation in relation to the EIS as the Minister thinks fit.
(7) The Minister
must give to the proponent copies of all submissions made within a specified
time limit.
(8) The proponent
must then prepare a written response to—
(a) matters raised by a Minister, and any authority or body specified by
the Minister, for consideration by the proponent; and
(b) all submissions referred to the proponent under
subsection (7)
,
and provide a copy of that response to the Minister.
(9) The Commission
must then prepare a report (an Assessment Report) that sets out or
includes—
(a) the Minister's assessment of the development; and
(b) the Minister's comments (if any) on—
(i) the EIS; and
(ii) any submissions made under
subsection (5)
; and
(iii) the proponent's response under
subsection (8)
; and
(c) comments provided by the Environment Protection Authority, another
Minister, a council or other authority or body for inclusion in the report;
and
(d) other comments or matter as the Minister or the Commission thinks
fit.
(10) The Commission must—
(a) notify a person who made a written submission under
subsection (5)
of the availability of the Assessment Report; and
(b) by public notice, give notice of the place or places at which copies
of the Assessment Report are available for inspection and purchase.
(11) Copies of the EIS, the proponent's response under
subsection (8)
, and the Assessment Report must be kept available for inspection and
purchase at a place determined by the Commission for a period determined by the
Commission.
(12) If a proposed development to which an EIS relates will, if the
development proceeds, be situated wholly or partly within the area of a council,
the Commission must give a copy of the EIS, the proponent's response under
subsection (8)
and the Assessment Report to the council.
(1) An EIS, and the relevant Assessment Report, may be amended at any time
in order to—
(a) correct an error; or
(b) take account of more accurate or complete data or technological or
other developments not contemplated when the document was prepared; or
(c) take account of an alteration to the original proposal; or
(d) update the document on account of the length of time that has passed
since the document was prepared (or last updated); or
(e) make such other provision as may be necessary or appropriate given the
content or purpose of an EIS or Assessment Report.
(a) the Minister cannot
amend an EIS prepared by a proponent but the proponent must, at the direction of
the Minister, undertake a review of an EIS prepared by the proponent (and then
make any appropriate amendments); and
(b) if a proposed amendment would in the opinion of the Minister
significantly affect the substance of the EIS, the amendment must not be made
before interested persons have been invited, in accordance with the practice
direction published by the Commission in connection with this Subdivision, to
make written submissions on the amendment and the Minister has considered the
submissions (if any) received in response to that invitation.
(3) If an EIS or Assessment Report is amended under this section, the
Commission must give notice of the place or places at which copies of the
relevant document or documents (with the amendments) are available for
inspection and purchase.
(4) An amendment under this section may include the addition, variation,
substitution or deletion of material.
(1) This section applies to a proposed development that is classified as
impact assessed development (other than restricted development).
(2) The Minister
may, in relation to a development to which this section applies—
(a) indicate (at
any time) that he or she will not grant a development authorisation for the
development; or
(b) on due application—
(i) grant a development authorisation required under this Act, subject to
conditions (if any) determined by the Minister; or
(ii) refuse approval to the development.
(3) However, the
Minister must not grant a development authorisation under this section
unless—
(a) an EIS, and an Assessment Report, have been prepared in relation to
the development in accordance with the requirements of this Subdivision (as
appropriate); or
(b) the Minister is satisfied that an appropriate EIS, and an Assessment
Report, that encompass the development have previously been prepared.
(4) If more than 5 years have elapsed since an EIS that relates to a
development to which this section applies was completed and placed on public
exhibition, the document cannot be used for the purposes of
subsection (3)
unless or until it has been reviewed in order to see whether it should be
amended (and, if amendment is found to be necessary, unless or until it is
amended).
(5) The Minister must, before the Minister approves a development to which
this section applies, have regard to—
(a) any relevant state planning policy; and
(b) the relevant regional plan; and
(c) the provisions of the Planning Rules and the regulations (so far as
they are relevant); and
(d) the Building Rules (so far as they are relevant); and
(e) if the development involves, or is for the purposes of, a prescribed
activity of environmental significance as defined by the
Environment
Protection Act 1993
—
(i) the objects of the
Environment
Protection Act 1993
; and
(ii) the general environmental duty under the
Environment
Protection Act 1993
; and
(iii) any relevant environment protection policies under the
Environment
Protection Act 1993
; and
(f) if the development is to be within an area of the State that is
specifically subject to a special legislative scheme—the views of the
Minister who is responsible for the administration of the Act in question;
and
(g) any relevant EIS, and the relevant Assessment Report,
and may, in making a decision, take into account other matters considered
relevant by the Minister.
(6) The Minister may grant a provisional development authorisation under
this section, reserving a decision on a specified matter—
(a) until further assessment of the relevant development under this Act;
or
(b) until further assessment or consideration of the proposed development
under another Act; or
(c) until a consent, approval, licence, permit or other authorisation is
granted, or not granted (by the decision of another authority), under another
Act.
(7) The Minister may—
(a) when determining what conditions should be attached to a development
authorisation under this section, attach conditions that must be complied with
in the future;
(b) —
(i) in relation to matters specified by the Minister when granting a
development authorisation under this section; or
(ii) on application of a person who has the benefit of a development
authorisation under this section; or
(iii) in relation to a matter that is relevant to the variation of a
development authorisation under this section,
vary or revoke conditions to which the development authorisation is subject
or attach new conditions to the development authorisation.
(8) The Minister may, on the application of a person who has the benefit
of the development authorisation under this section, vary a development
authorisation that has been given under this section.
(9) If—
(a) the Minister gives a development authorisation under this section;
but
(b) the development to which the development authorisation relates is not
commenced by substantial work on the site of the development within the time
specified by the regulations or, if a time is specified by the Minister as part
of the development authorisation, within that time,
the Minister may, by notice in writing to any owner or occupier of the
relevant land, cancel the development authorisation.
(10) No appeal lies against a decision under this section.
(11) A person—
(a) who undertakes development to which this section applies without the
consent of the Minister; or
(b) who undertakes development contrary to a development authorisation
under this section; or
(c) who contravenes, or fails to comply with, a condition on which a
development authorisation was granted,
is guilty of an offence.
Maximum penalty: $250 000.
Additional penalty.
Default penalty: $1 000.
(12) A person who has the benefit of a development must ensure that the
development is used, maintained and operated in accordance with—
(a) any development authorisation under this section; and
(b) documents submitted for the purposes of this Division that are
relevant to such development authorisation.
Maximum penalty: $120 000.
Default penalty: $500.
The Minister may recover, as a debt due from the proponent, reasonable
costs incurred in relation to—
(a) the preparation and publication of material relating to an EIS and an
Assessment Report; and
(b) the making of decision under
section 108
.
(1) This section applies to a development that has been subject to
assessment as impact assessed development.
(a) by notice in
writing to a person—
(i) who is undertaking a development to which this section applies;
or
(ii) who has the benefit of a development to which this section
applies,
require the person to do either or both of the following:
(iii) to carry out specified tests and monitoring relevant to the
development and to make specified reports to the Minister on the results of the
tests and monitoring;
(iv) to comply with the requirements of an audit program specified by the
Minister to the satisfaction of the Minister;
(b) after given notice
in writing to a person—
(i) who is undertaking a development to which this section applies;
or
(ii) who has the benefit of a development to which this section
applies,
cause to be carried out specified tests and monitoring relevant to the
development.
(3) A person to whom a notice is directed under
subsection (2)
must—
(a) in the case of a notice under
subsection (2)(a)
—comply with the terms of the notice; or
(b) in the case of a notice under
subsection (2)(b)
—provide reasonable assistance to facilitate the testing or
monitoring specified in the notice.
Maximum penalty: $15 000.
(4) The Minister may recover, as a debt due from a person who receives a
notice under
subsection (2)(b)
, reasonable costs incurred in carrying out tests and monitoring specified
by that notice.
(1) If the regulations provide that a form of building work complies with
the Building Rules, any such building work must be granted a building consent
(subject to such conditions or exceptions as may be prescribed by the
regulations).
(2) Subject to
subsection (6)
, a development that is at variance with the Building Rules must not be
granted a building consent unless—
(a) the variance is
with the performance requirements of the Building Code and the Commission
concurs in the granting of the consent; or
(b) the variance is with a part of the Building Rules other than the
Building Code and the relevant authority determines that it is appropriate to
grant the consent despite the variance on the basis that it is
satisfied—
(i) that—
(A) the provisions of the Building Rules are inappropriate to the
particular building or building work, or the proposed building work fails to
conform with the Building Rules only in minor respects; and
(B) the variance is justifiable having regard to the objects of the
Planning and Design Code or the performance requirements of the Building Code
and would achieve the objects of this Act as effectively, or more effectively,
than if the variance were not to be allowed; or
(ii) in a case where the consent is being sought after the development has
occurred—that the variance is justifiable in the circumstances of the
particular case.
(3) No appeal lies against—
(a) a refusal of concurrence by the Commission under
subsection (2)(a)
; or
(b) a refusal of building consent by a relevant authority if the
Commission has refused its concurrence under
subsection (2)(a)
; or
(c) a condition attached to a consent or approval that is expressed to
apply by virtue of a variance with the performance requirements of the Building
Code.
(4) A relevant authority may, at the request or with the agreement of the
applicant, refer proposed building work to the Commission for an opinion on
whether or not it complies with the performance requirements of the Building
Code.
(5) In addition, regulations made for purposes of this subsection may
provide that building work of a prescribed class must not be granted a building
consent unless the Commission concurs in the granting of the consent.
(6) If an
inconsistency exists between the Building Rules and the Planning Rules in
relation to a State heritage place or a local heritage place—
(a) the Planning Rules prevail and the Building Rules do not apply to the
extent of the inconsistency; but
(b) the relevant authority must, in determining an application for
building rules consent, ensure, so far as is reasonably practicable, that
standards of building soundness, occupant safety and amenity are achieved in
respect of the development that are as good as can reasonably be achieved in the
circumstances.
(7) A relevant authority must seek and consider the advice of the
Commission before imposing or agreeing to a requirement under
subsection (6)
that would be at variance with the performance requirements of the
Building Code.
(8) Subject to this
Act, a relevant authority must accept that proposed building work complies with
the Building Rules to the extent that—
(a) such compliance
is certified by the provision of technical details, particulars, plans, drawings
or specifications prepared and certified in accordance with the regulations;
or
(b) such compliance is certified by a building certifier.
(9) No act or omission by a relevant authority in good faith in connection
with the operation of
subsections (6)
or
(8)(a)
(other than where a certificate under
subsection (8)(a)
is given by a building certifier) subjects the relevant authority to any
liability.
(10) The relevant
authority may refuse to grant a consent in relation to any development if, as a
result of that development, the type or standard of construction of a building
of a particular classification would cease to conform with the requirements of
the Building Rules for a building of that classification.
(11) If a relevant
authority decides to grant building consent in relation to a development that is
at variance with the Building Rules, the relevant authority must, subject to the
regulations, in giving notice of its decision on the application for that
consent, specify (in the notice or in an accompanying document)—
(a) the variance; and
(b) the grounds on which the decision is being made.
Division 4—Procedural
matters and assessment facilitation
112—Application
and provision of information
(1) An application
to a relevant authority for the purposes of this Part must—
(a) be in a form
determined by the Minister for the purposes of this Act; and
(b) include any information reasonably required by the relevant authority;
and
(c) be lodged in
the manner and accompanied by such plans, drawings, specifications or other
documents as may be prescribed; and
(d) be accompanied
by the appropriate fee.
(2) No fee is payable under this section in relation to an application
made by the owner or occupier of land (the relevant land) in order
to remove or cut back a part of a regulated tree that is located on adjoining
land but is encroaching on to the relevant land.
(3) A relevant
authority may request an applicant—
(a) to provide such additional documents, assessments or information
(including calculations and technical details) as the relevant authority may
reasonably require to assess the application;
(b) to remedy any defect or deficiency in any application or accompanying
document or information required by or under this Act;
(c) to consult with an authority or body prescribed by the
regulations;
(d) to comply with any other requirement prescribed by the
regulations.
(4) If—
(a) a development is of a kind that is classified by the Planning and
Design Code as deemed-to-satisfy development; and
(b) the development falls within a class of development prescribed by the
regulations for the purposes of this subsection; and
(c) the applicant has complied with the requirements of
subsection (1)(a)
,
(c)
and
(d)
,
then the relevant authority must, in making an assessment as to planning
consent, assess the application without requesting the applicant to provide
additional documents or information.
(5) If—
(a) a development falls within a class of development prescribed by the
regulations for the purposes of this subsection; and
(b) the applicant has complied with the requirements of
subsection (1)(a)
,
(c)
and
(d)
,
then—
(c) the relevant authority may, in making an assessment as to planning
consent, only request the applicant to provide additional documents or
information in relation to the application on 1 occasion; and
(d) the relevant authority must make that request within a period
prescribed by the regulations.
(6) If a request is
made under
subsection (3)
—
(a) any period between the date of the request and the date of compliance
is not to be included in the time within which the relevant authority is
required to decide the application; and
(b) if the request is not complied with within the time specified by the
regulations, the relevant authority—
(i) may, subject to
subparagraph (ii)
, refuse the application; and
(ii) must refuse
the application in prescribed circumstances (including, if the regulations so
provide, in a case involving development that is deemed-to-satisfy
development).
(7) A relevant authority should, in dealing with an application that
relates to a regulated tree, unless the relevant authority considers that
special circumstances apply, seek to make any assessment as to whether the tree
is a significant tree without requesting the applicant to provide an expert or
technical report relating to the tree.
(8) A relevant authority should, in dealing with an application that
relates to a regulated tree that is not a significant tree, unless the relevant
authority considers that special circumstances apply, seek to assess the
application without requesting the applicant to provide an expert or technical
report relating to the tree.
(a) permit an applicant—
(i) to vary an application;
(ii) to vary any plans, drawings, specifications or other documents that
accompanied an application,
(provided that the essential nature of the proposed development is not
changed);
(b) permit an applicant to lodge an application without the provision of
any information or document required by the regulations;
(c) to the extent that the fee is payable to that relevant authority waive
payment of whole or part of the application fee, or refund an application fee
(in whole or in part);
(d) if there is an inconsistency between any documents lodged with the
relevant authority for the purposes of this Part (whether by an applicant or any
other person), or between any such document and a development authorisation that
has already been given that is relevant in the circumstances, return or forward
any document to the applicant or to any other person and determine not to
finalise the matter until any specified matter is resolved, rectified or
addressed.
(10) A relevant authority may grant a permission under
subsection (9)
unconditionally or subject to such conditions as the relevant authority
thinks fit.
(11) Without limiting
subsection (6)
, if—
(a) an applicant requests time to address any issue related to the
application (including so as to prepare and submit any variation); or
(b) an applicant requires time to respond to any matter raised by a person
or body in connection with the application under this Act,
then, subject to the regulations, the time required by the applicant is not
to be included in the time within which the relevant authority is required to
decide the application.
(12) An application, or a consent, may provide for, or envisage the
undertaking of development in stages, with separate consents or approvals for
the various stages.
(13) To avoid doubt, a person may apply for the approval of a proposed
development even if the person is not the owner or occupier of the land
constituting the site of the proposed development.
(14) An applicant may withdraw an application (but, unless the relevant
authority otherwise determines, the applicant is not entitled to a refund of the
application fee in such a case).
(1) Subject to this section, a relevant authority may, on application,
grant a consent in the nature of an outline consent.
(2) An outline consent may be granted in circumstances specified by a
practice direction.
(3) If an outline consent is granted and a subsequent application is made
with respect to the same development (subject to any variations allowed by a
practice direction), a relevant authority—
(a) must grant any consent contemplated by the outline consent;
and
(b) must not impose a requirement that is inconsistent with the outline
consent.
(4) An outline consent remains operative for a period specified by a
practice direction.
(1) This section applies in relation to development of a class specified
by the Planning and Design Code.
(2) A person who is considering the undertaking of development to which
this section applies may apply to a design panel for advice.
(3) An application under this section must—
(a) be in a form determined by the Commission; and
(b) include any information specified by the Commission; and
(c) be accompanied by the prescribed fee.
(4) If an application is made, a design panel will be established under a
scheme determined by the Minister for the purposes of this section.
(5) The design panel may provide advice about 1 or more of the
following:
(a) the form or content of the proposed development; and
(b) how the proposed development might be changed or improved;
and
(c) other matters that may assist with the assessment of the development;
and
(d) such other matters as the design panel thinks fit.
(6) A design panel may, in acting under this section, adopt such
procedures as it thinks fit.
(7) A relevant authority must, in acting under this Act, take into account
any advice provided by a design panel (insofar as may be relevant to the
assessment of proposed development by the relevant authority).
(8) No action may be brought against a member of a design panel on the
basis of any advice or other action given or taken by a design panel under this
section.
115—Referrals
to other authorities or agencies
(1) The regulations
may provide, subject to this section, that where an application for consent to,
or approval of, a proposed development of a prescribed class is to be assessed
by a relevant authority—
(a) the relevant
authority must refer the application, together with a copy of any relevant
information provided by the applicant, to a body prescribed by the regulations
(including, if so prescribed, the Commission); and
(b) the relevant authority must not make its decision until it has
received a response from that prescribed body in relation to the matter or
matters for which the referral was made (but if a response is not received from
the body within a period prescribed by the regulations, it will be presumed,
unless the body notifies the relevant authority within that period that the body
requires an extension of time because of
subsection (4)
(being an extension equal to that period of time that the applicant takes
to comply with a request under
subsection (3)
), that the body does not desire to make a response, or concurs (as the
case requires)).
(2) The Governor must not prescribe a body (other than the Commission)
under
subsection (1)(a)
unless—
(a) the Governor is
satisfied that provisions about the policy or policies that the body will seek
to apply in connection with the operation of this section have been included in
the Planning and Design Code (recognising that a policy may not apply in all
cases, or that a policy may need to be varied, adjusted or reconsidered in
particular cases); or
(b) the Minister has indicated that the Minister is satisfied that a
policy envisaged by
paragraph (a)
is not necessary or is not appropriate.
(3) A prescribed
body may, before it gives a response under this section, request the
applicant—
(a) to provide such additional documents or information (including
calculations and technical details) as the prescribed body may reasonably
require to assess the application; and
(b) to comply with any other requirements or procedures of a prescribed
kind.
(4) If a request is
made under
subsection (3)
—
(a) the prescribed
body may specify a time within which the request must be complied with;
and
(b) the prescribed body may, if it thinks fit, grant an extension of the
time specified under
paragraph (a)
.
(5) The regulations may, in relation to the operation of
subsection (1)
—
(a) provide that the relevant authority cannot consent to or approve the
development without the concurrence of the prescribed body (which concurrence
may be given by the prescribed body on such conditions as it thinks
fit);
(b) empower the prescribed body to direct the relevant
authority—
(i) to refuse the application; or
(ii) if the relevant authority decides to consent to or approve the
development—subject to any specific limitation under another Act as to the
conditions that may be imposed by the prescribed body, to impose such conditions
as the prescribed body thinks fit,
(and the relevant authority must comply with any such direction).
(6) If a relevant
authority acting by direction of a prescribed body refuses an application or
imposes conditions in respect of a development authorisation—
(a) the relevant authority must notify the applicant that the application
was refused, or the conditions imposed, by direction under this section;
and
(b) if the regulations so provide, no appeal lies against that refusal or
those conditions.
(7) If a relevant authority is directed by a prescribed body to refuse an
application and the refusal is the subject of an appeal under this Act, the
prescribed body is a respondent to the appeal and the relevant authority may, on
application, be joined as a party to the proceedings.
(8) If a relevant authority is directed by a prescribed body to impose a
condition in respect of a development authorisation and the condition is the
subject of an appeal under this Act, both the prescribed body and the relevant
authority are respondents to the appeal.
(9) A prescribed body acting under this section is only to deal with the
matter or matters for which a referral was made to the extent that is relevant
to the purpose of the referral and so as only to consider matters that are
within its relevant field of expertise or operation.
(10) An applicant may
request a relevant authority to defer a referral under this section to a
particular stage in the process of assessment and, in such a case, the relevant
authority must comply with the request.
(11) However, a request under
subsection (10)
may not be made if it is inconsistent with any provision made by the
regulations for the purposes of this subsection.
116—Preliminary
advice and agreement
(1) A person may
seek the opinion of a prescribed body under
section 115
in relation to proposed development before lodging an application for
planning consent with respect to the development.
(a) a proposed development is referred to a prescribed body under
subsection (1)
; and
(b) the prescribed
body agrees to consider the matter under this section after taking into account
any matter prescribed by the regulations; and
(c) the prescribed
body agrees, in the manner prescribed by the regulations, that the development
meets the requirements (if any) of the prescribed body (including on the basis
of the imposition of conditions),
then, subject to
subsection (4)
—
(d) if an application for planning consent with respect to the development
is lodged with the relevant authority within the prescribed period after the
prescribed body has indicated its agreement under
paragraph (c)
; and
(e) if the relevant authority is satisfied that the application accords
with the agreement indicated by the prescribed body (taking into account the
terms or elements of that agreement and any relevant plans and other
documentation),
the application will not be referred to the prescribed body under
section 115
.
(3) A prescribed body under
section 115
may, in connection with the operation of
subsections (1)
and
(2)
—
(a) require the payment of a fee prescribed by the regulations (if the
prescribed body agrees to consider the matter under
subsection (2)(b)
); and
(b) in relation to the proposed development—exercise any power
(including the power to impose conditions) that it would be able to exercise if
the development were to be referred to it under
section 115
.
(4) Any agreement
under this section will cease to have effect (and an application will need to be
referred to a prescribed body under
section 115
despite the operation of
subsection (2)
) if the relevant authority determines that the agreement is no longer
appropriate due to the operation of
section 125
.
(5) If—
(a) a prescribed body had indicated its agreement under this section;
and
(b) an application is not referred to the prescribed body under
section 115
by virtue of the operation of
subsection (2)
of this section,
the process established by this section will be taken to be a referral
under
section 115
for the purposes of any other Act.
117—Proposed
development involving creation of fortifications
(1) If a relevant
authority has reason to believe that a proposed development may involve the
creation of fortifications, the relevant authority must refer the application
for consent to, or approval of, the proposed development to the Commissioner of
Police (the Commissioner).
(2) Subject to
subsection (3)
, the Commissioner must, as soon as possible after receipt of a referral
under
subsection (1)
—
(a) assess the application to determine whether or not the proposed
development involves the creation of fortifications; and
(b) advise the relevant authority in writing of the Commissioner's
determination.
(3) The Commissioner
may, before making a determination under this section, request the applicant to
provide such additional documents or information (including calculations and
technical details) as the Commissioner may reasonably require to assess the
application.
(4) If a request is made under
subsection (3)
—
(a) the Commissioner
may specify a time within which the request must be complied with; and
(b) the Commissioner may, if he or she thinks fit, grant an extension of
the time specified under
paragraph (a)
.
(5) If the Commissioner
determines that the proposed development involves the creation of fortification,
the relevant authority must—
(a) if the proposed development consists only of the creation
fortifications—refuse the application; or
(b) in any other case—impose conditions in respect of any consent to
or approval of the proposed development prohibiting the creation of the
fortifications.
(6) If a relevant authority acting on the basis of a determination of the
Commissioner under
subsection (2)
refuses an application or imposes conditions in respect of a development
authorisation, the relevant authority must notify the applicant that the
application was refused, or the conditions imposed, on the basis of a
determination of the Commissioner under this section.
(7) If a refusal or condition referred to in
subsection (5)
is the subject of an appeal under this Act—
(a) the Commissioner will be the respondent to the appeal; and
(b) the relevant authority may, if the Court permits, be joined as a party
to the appeal.
118—Time
within which decision must be made
(1) A relevant
authority should deal with an application as expeditiously as possible and
within the time prescribed by the regulations.
(2) If a relevant authority does not decide an application within the time
prescribed under
subsection (1)
in respect of the provision of planning consent, the applicant may, before
the application is decided, give the relevant authority a notice in the
prescribed manner and form (a deemed consent notice) that states
that planning consent should be granted.
(3) On the day that the
relevant authority receives the deemed consent notice, the relevant authority
is, subject to this section, taken to have granted the planning consent (a
deemed planning consent).
(4) The relevant
authority may, within 10 business days after receiving the deemed consent
notice—
(a) grant the planning
consent itself; or
(b) grant the planning
consent subject to conditions.
(5) The deemed planning consent is taken to include—
(a) any conditions that a relevant authority imposes under
subsection (4)(b)
; or
(b) if the relevant authority does not grant a planning consent under
subsection (4)
—any standard condition specified by a practice direction issued by
the Commission for the purposes of this subsection.
(a) a deemed planning consent is taken to have been granted under
subsection (3)
; and
(b) a relevant authority considers that the relevant application for
planning consent should have been refused,
the relevant authority may apply to the Court for an order quashing the
consent.
(7) An application under
subsection (6)
must be made within 1 month after the deemed planning consent is
taken to have been granted unless the Court, in its discretion, allows an
extension of time (and then the Court will determine the matter under
section 192
).
(8) If a relevant
authority does not decide an application within the time prescribed under
subsection (1)
in respect of the provision of a development authorisation other than
planning consent, the applicant may, after giving the relevant authority 14 days
notice in accordance with the regulations, apply to the Court for an order
requiring the relevant authority to make its determination within a time fixed
by the Court.
(9) If the Court makes an order under
subsection (8)
, the Court should also order the relevant authority to pay the applicant's
costs of the proceedings unless the Court is satisfied—
(a) that the delay is not attributable to an act or omission of the
relevant authority; or
(b) that the delay is attributable to a decision of the relevant authority
not to deal with the application within the relevant time
because—
(i) it appeared to the relevant authority that there had been a failure to
comply with a requirement prescribed by or under this Act; or
(ii) the relevant authority was not provided with appropriate
documentation or information relevant to making a decision under this Act;
or
(iii) the relevant authority believed, on other reasonable grounds, that
it was not appropriate to decide the matter in the particular circumstances;
or
(c) that an order for costs should not be made for some other
reason.
(10) This section does not apply to or in relation to impact assessed
development where the Minister is the relevant authority.
119—Determination
of application
(1) A relevant authority must, on making a decision on an application
under this Part, give notice of the decision in accordance with the regulations
(and, in the case of a refusal, the notice must include the reasons for the
refusal and any appeal rights that exist under this Act).
(2) A development
authorisation under this Part remains operative for a period prescribed by the
regulations.
(3) A relevant authority may, on its own initiative or on the application
of a person who has the benefit of any relevant development authorisation,
extend a period prescribed under
subsection (2)
.
(4) A court may, on the application of a person who is a party to
proceedings before the court which relate to any matter arising under this Act,
extend a period prescribed under
subsection (2)
.
(1) A decision
under this Part is subject to such conditions (if any)—
(a) as a relevant
authority thinks fit to impose in relation to the development; or
(b) as may be specified by any practice direction or otherwise imposed
under another provision of this Act.
(2) Any such condition—
(a) in the case of a condition under
subsection (1)(a)
—must be consistent with any practice direction published by the
Commission for the purposes of this section (and, for the purposes of this
paragraph, a practice direction may prohibit certain conditions or classes of
condition); and
(b) is binding on, and enforceable against—
(i) the person by whom the development is undertaken; and
(ii) any person who acquires the benefit of the decision or the
development; and
(iii) the owners and occupiers of the land on which the development is
undertaken; and
(c) may continue to apply in relation to the development unless or until
it is varied or revoked by the relevant authority in accordance with an
application under this Part.
(3) Subject to a preceding subsection, a relevant authority may, for
example, approve a development subject to a condition—
(a) that regulates or restricts the use of any land or building subject to
development; or
(b) that provides for the management, preservation or conservation of any
land or building subject to development; or
(c) that regulates maintenance of any land or building subject to
development; or
(d) if the applicant is seeking approval for a temporary
development—that provides that, at a future time specified in the
condition—
(i) the previous use of the land will revive, or a use of the land will
cease; and
(ii) any person who has the benefit of the development will restore the
land to the state in which it existed immediately before the
development.
(4) Subject to
subsections (6)
and
(8)
, if a development authorisation provides for the killing, destruction or
removal of a regulated tree or a significant tree, the relevant authority must
apply the principle that the development authorisation be subject to a condition
that the prescribed number of trees (of a kind determined by the relevant
authority) must be planted and maintained to replace the tree (with the cost of
planting to be the responsibility of the applicant or any person who acquires
the benefit of the consent and the cost of maintenance to be the responsibility
of the owner of the land).
(5) A tree planted under
subsection (4)
must satisfy any criteria prescribed by the regulations (which may include
criteria that require that any such tree not be of a species prescribed by the
regulations).
(6) The relevant
authority may, on the application of the applicant, determine that a payment of
an amount calculated in accordance with the regulations be made into the
relevant fund in lieu of planting 1 or more replacement trees under
subsection (4)
(and the requirements under
subsection (4)
will then be adjusted accordingly).
(7) For the purposes of
subsection (6)
, the relevant fund is—
(a) unless
paragraph (b)
applies—an urban trees fund for the area where the relevant tree is
situated;
(i) an urban trees fund has not been established for the area where the
relevant tree is situated; or
(ii) the relevant authority is the Commission or an assessment panel
appointment by the Minister or a joint planning board,
the Planning and Development Fund.
(8)
Subsections (4)
and
(6)
do not apply if—
(a) the relevant tree is of a class excluded from the operation of those
subsections by the regulations; or
(b) the relevant authority determines that it is appropriate to grant an
exemption under this subsection in a particular case after taking into account
any criteria prescribed by the regulations and the Minister concurs in the
granting of the exemption.
Division 6—Variation
of authorisation
121—Variation
of authorisation
(1) Subject to
subsection (2)
, a person may seek the variation of a development authorisation previously
given under this Act (including by seeking the variation of a condition imposed
with respect to the development authorisation).
(2) An application
to which
subsection (1)
applies—
(a) may only be made if the relevant authorisation is still operative;
and
(b) will, for the purposes of this Part, but subject to any exclusion or
modification prescribed by the regulations and any other provision made by the
regulations, to the extent of the proposed variation (and not so as to provide
for the consideration of other elements or aspects of the development or the
authorisation), be treated as a new application for development authorisation;
and
(c) in a case where the development to which the development authorisation
previously given was classified by the Planning and Design Code as restricted
development—must also be dealt with as restricted development if any
representations were made under
section 103(2)(b)
, unless the Commission (as the relevant authority) determines that no such
representation related to any aspect of the development that is now under
consideration on account of the application for variation and that, in the
circumstances, the level of notification and consultation envisaged by
section 103
is not required; and
(d) unless otherwise approved by the relevant authority, cannot seek to
extend the period for which the relevant authorisation remains
operative.
Part 8—Development
assessment—essential infrastructure
Division 1—Development
assessment—standard designs
122—Development
assessment—standard designs
(1) In this section—
infrastructure reserve means—
(a) land identified in the Planning and Design Code as having a land use
that is specified as being suitable for infrastructure; or
(b) land that is subject to a statutory easement;
statutory easement means an easement under an Act that is
brought within the ambit of this definition by the regulations.
(2) For the purposes of this section, the Minister may, on the
recommendation of the Commission, adopt a design standard relating to any
infrastructure or class of infrastructure (a standard infrastructure
design).
(3) The following provisions may apply in relation to proposed development
to be undertaken for the purposes of essential infrastructure—
(a) if the proposed development is to be undertaken within an
infrastructure reserve—an assessment against the Planning Rules, and
planning consent, are not required; and
(b) if the proposed development is consistent with a standard
infrastructure design and to be undertaken within an infrastructure reserve
where that design is recognised as being permitted within that reserve—an
accredited professional may (if qualified under this Act) act as a relevant
authority for the purposes of granting any relevant development
authorisation.
Division 2—Essential
infrastructure—alternative assessment process
123—Essential
infrastructure—alternative assessment process
(1) This section applies to essential infrastructure of a prescribed
class.
(2) A person who proposes to undertake development with respect to the
provision of essential infrastructure to which this section applies (a
proponent) may apply to the Commission for an approval under this
section.
(3) The application must contain the prescribed particulars.
(4) The Commission may
request the proponent to provide additional documents or information (including
calculations and technical details) in relation to the application.
(5) If an
application relates to development within the area of a council, the Commission
must give notice containing prescribed particulars of the development to the
council in accordance with the regulations.
(6) A council may
report to the Commission on any matters contained in a notice under
subsection (5)
.
(7) Where a notice is given to a council under
subsection (6)
, and a report from the council is not received by the Commission within 4
weeks of the date of the notice, it will be conclusively presumed that the
council does not intend to report on the matter.
(8) The Commission must assess an application lodged with it under this
section.
(9) The regulations
may provide that where an application relates to a proposed development of a
prescribed class, the Commission must refer the application, together with a
copy of any relevant information provided by the proponent, to a body prescribed
by the regulations for comment and report within the time prescribed by the
regulations.
(10) A prescribed body may, before it provides a report under
subsection (9)
, request the proponent—
(a) to provide additional documents or information (including calculations
and technical details) in relation to the application; and
(b) to comply with any other requirements or procedures of a prescribed
kind.
(11) If an application is referred to a prescribed body under
subsection (9)
and a report from the prescribed body is not received by the Commission
within a period determined under the regulations, it will be conclusively
presumed that the prescribed body does not intend to report on the
matter.
(12) If an application is for a development that involves construction
work where the total amount to be applied to the work will, when all stages are
complete, exceed $10 000 000, other than an application for a
variation to an approved development that, in the opinion of the Commission, is
of a minor nature, the Commission must—
(a) by public
advertisement, invite interested persons to make written submissions to it on
the proposal within a period of at least 15 business days; and
(b) allow a person
who has made a written submission to it within that period and who, as part of
that submission, has indicated an interest in appearing before it, a reasonable
opportunity to appear personally or by representative before the Commission to
be heard in support of his or her submission; and
(c) give due consideration in its assessment of the application to any
submissions made by interested persons as referred to in
paragraph (a)
or
(b)
.
(13) The Commission will then prepare a report to the Minister on the
matter.
(14) If a council has,
in relation to any matters referred to the council under
subsection (5)
, expressed opposition to the proposed development in its report under
subsection (6)
, a copy of the report must be attached to the Commission's report (unless
the council has, since providing its report, withdrawn its
opposition).
(15) If a prescribed body has provided a report under
subsection (9)
, a copy of the report must also be attached to the Commission's
report.
(16) The Commission
must, unless the Minister grants an extension of time, furnish its report within
the time prescribed by the regulations.
(17) If a request is made under
subsection (4)
, any period between the date of request and the date of compliance is not
to be included in the calculation of the period under
subsection (16)
.
(18) The Minister may, after receipt of the report of the Commission under
this section (and after taking such action (if any) as the Minister thinks
fit)—
(a) approve the development; or
(b) refuse to approve the development.
(19) An approval may be given—
(a) for the whole or part of a proposed development;
(b) subject to such conditions as the Minister thinks fit.
(20) An approval
under this section will be taken to be given subject to the condition that,
before any building work is undertaken, the building work be certified by a
building certifier, or by some person determined by the Minister for the
purposes of this provision, as complying with the provisions of the Building
Rules to the extent that is appropriate in the circumstances.
(21) A person acting under
subsection (20)
must—
(a) seek and consider the advice of the Commission before giving a
certificate in respect of building work that would be at variance with the
performance requirements of the Building Code; and
(b) take into account the criteria, and comply with any requirement,
prescribed by the regulations before giving a certificate in respect of building
work that would otherwise involve a variance with the Building Rules,
and if the person gives a certificate that involves building work that is
at variance with the Building Rules then the person must, subject to the
regulations, specify the variance in the certificate.
(22) A person engaged to perform building work for a development approved
under this section must—
(a) ensure that the building work is performed in accordance with
technical details, particulars, plans, drawings and specifications certified for
the purposes of
subsection (20)
; and
(b) comply with the Building Rules (subject to any certificate under
subsection (20)
that provides for a variance with the Building Rules), and any other
requirements imposed under this section.
Maximum penalty: $120 000.
Default penalty: $500.
(23) A person must not contravene, or fail to comply with, a condition of
an approval under this section.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(24) If the Minister approves a development under this section, no other
procedure or requirement relating to the assessment of the development under
this Act applies and no other development authorisation (including a certificate
or approval under
Part 11
) is required under this Act, although the Minister may, if necessary for
the purposes of any other Act, issue any other development authorisation under
this Act (which will then be taken, for the purposes of that other Act, to have
been issued by a relevant authority under this Act).
(25) Despite a
preceding subsection, if the Minister directs that an EIS be prepared with
respect to a development otherwise within the ambit of this section
then—
(a) this section ceases to apply to the development; and
(b) the proponent must not undertake the development without the approval
of the Minister under
section 108
(as if the development were classified as impact assessed development);
and
(c) unless
section 108(2)(a)
applies, the development becomes subject to the processes and procedures
under this Act with respect to the preparation and consideration of an
EIS.
(26) No appeal lies against a decision of the Minister under this
section.
(27) This section does not limit—
(a) the ability of a person to apply for the assessment and approval of
essential infrastructure under
Part 7
; or
(b) the ability of a person to proceed under
Division 1
of the Part.
Part 9—Development
assessment—Crown development
124—Development
assessment—Crown development
(1) In this section—
the Crown means the Crown in right of the State;
State agency means—
(a) the Crown or a Minister of the Crown;
(b) an agency or instrumentality of the Crown (including a Department or
administrative unit of the State);
(c) any other prescribed person or prescribed body acting under the
express authority of the Crown,
but does not include a person or body excluded from the ambit of this
definition by regulation.
(2) Subject to this
section, if—
(a) a State agency proposes to undertake development (other than in
partnership or joint venture with a person or body that is not a State agency);
or
(b) a State agency proposes to undertake development for the purposes of
the provision of essential infrastructure (whether or not in partnership or
joint venture with a person or body that is not a State agency); or
(c) a person proposes to undertake development initiated or supported by a
State agency for the purposes of the provision of essential infrastructure and
specifically endorsed by the State agency for the purposes of this
section,
the State agency must lodge an application for approval containing
prescribed particulars with the Commission.
(3) Subject to
subsection
(4)
, this section does not apply to or in relation to proposed development
if—
(a) the development is accepted development or deemed-to-satisfy
development under
Part 7
Division 2
; and
(b) the relevant State agency determines to proceed with the assessment
and approval of the development under
Part 7
(and any other related provisions of this Act).
(4) No application
for approval is required (either under this section or any other provision of
this Act), and no notice to a council is required under
subsection (6)
, if the development is of a kind excluded from the provisions of this
section by regulation.
(5) The Commission
may request the State agency to provide additional documents or information
(including calculations and technical details) in relation to the
application.
(6) If an
application relates to development within the area of a council, the Commission
must give notice containing prescribed particulars of the development to the
council in accordance with the regulations.
(7) A council may
report to the Commission on any matters contained in a notice under
subsection (6)
.
(8) Where a notice is given to a council under
subsection (6)
, and a report from the council is not received by the Commission within
4 weeks of the date of the notice, it will be conclusively presumed that
the council does not intend to report on the matter.
(9) The Commission must assess an application lodged with it under this
section.
(10) The
regulations may provide that where an application relates to a proposed
development of a prescribed class, the Commission must refer the application,
together with a copy of any relevant information provided by the State agency,
to a body prescribed by the regulations for comment and report within the time
prescribed by the regulations.
(11) A prescribed body may, before it provides a report under
subsection (10)
, request the State agency—
(a) to provide additional documents or information (including calculations
and technical details) in relation to the application; and
(b) to comply with any other requirements or procedures of a prescribed
kind.
(12) If an application is referred to a prescribed body under
subsection (10)
and a report from the prescribed body is not received by the Commission
within a period determined under the regulations, it will be conclusively
presumed that the prescribed body does not intend to report on the
matter.
(13) If an application is for a development that involves construction
work where the total amount to be applied to the work will, when all stages are
completed, exceed $10 000 000, other than an application for a
variation to an approved development that, in the opinion of the Commission, is
of a minor nature, the Commission must—
(a) by public
notice, invite interested persons to make written submissions to it on the
proposal within a period of at least 15 business days; and
(b) allow a person
who has made a written submission to it within that period and who, as part of
that submission, has indicated an interest in appearing before it, a reasonable
opportunity to appear personally or by representative before the Commission to
be heard in support of his or her submission; and
(c) give due consideration in its assessment of the application to any
submissions made by interested persons as referred to in
paragraph (a)
or
(b)
.
(14) The Commission will then prepare a report to the Minister on the
matter.
(15) If a council has, in relation to any matters referred to the council
under
subsection (6)
, expressed opposition to the proposed development in its report under
subsection (7)
, a copy of the report must be attached to the Commission's report (unless
the council has, since providing its report, withdrawn its
opposition).
(16) If a prescribed body has provided a report under
subsection (10)
, a copy of the report must also be attached to the Commission's
report.
(17) The Commission
must, unless the Minister grants an extension of time, furnish its report within
the time prescribed by the regulations.
(18) If a request is made under
subsection (5)
, any period between the date of request and the date of compliance is not
to be included in the calculation of the period under
subsection (17)
.
(19) The Minister may, after receipt of the report of the Commission under
this section (and after taking such action (if any) as the Minister thinks
fit)—
(a) approve the development; or
(b) refuse to approve the development.
(20) An approval may be given—
(a) for the whole or part of a proposed development;
(b) subject to such conditions as the Minister thinks fit.
(21) An approval
under this section will be taken to be given subject to the condition that,
before any building work is undertaken, the building work be certified by a
building certifier, or by some person determined by the Minister for the
purposes of this provision, as complying with the provisions of the Building
Rules to the extent that is appropriate in the circumstances.
(22) A person acting under
subsection (21)
must—
(a) seek and consider the advice of the Commission before giving a
certificate in respect of building work that would be at variance with the
performance requirements of the Building Code; and
(b) take into account the criteria, and comply with any requirement,
prescribed by the regulations before giving a certificate in respect of building
work that would otherwise involve a variance with the Building Rules,
and if the person gives a certificate that involves building work that is
at variance with the Building Rules then the person must, subject to the
regulations, specify the variance in the certificate.
(23) A person engaged to perform building work for a development approved
under this section must—
(a) ensure that the building work is performed in accordance with
technical details, particulars, plans, drawings and specifications certified for
the purposes of
subsection (21)
; and
(b) comply with the Building Rules (subject to any certificate under
subsection (21)
that provides for a variance with the Building Rules), and any other
requirements imposed under this section.
Maximum penalty: $30 000.
Default penalty: $500.
(24) If the Minister approves a development under this section, no other
procedure or requirement relating to the assessment of the development under
this Act applies and no other development authorisation (including a certificate
or approval under
Part 11
) is required under this Act, although the Minister may, if necessary for
the purposes of any other Act, issue any other development authorisation under
this Act (which will then be taken, for the purposes of that other Act, to have
been issued by a relevant authority under this Act).
(25) Despite a preceding subsection, if the Minister directs that an EIS
be prepared with respect to a development otherwise within the ambit of this
section, then—
(a) this section ceases to apply to the development; and
(b) the State agency must not undertake the development without the
approval of the Minister under
section 108
(as if the development were classified as impact assessed development);
and
(c) unless
section 108(2)(a)
applies, the development becomes subject to the procedures under this Act
with respect to the preparation and consideration of an EIS.
(26) No appeal lies against a decision of the Minister under this
section.
Part 10—Development
assessment and approval—related provisions
125—Law
governing proceedings under this Act
(1) If an application is made for a development authorisation under this
Act, the law to be applied in deciding the application and the law to be applied
in resolving any issues arising from the decision in any proceedings (whether
brought under this Act or not) is the law in force as at the time the
application was made.
(2) The provisions of the Planning and Design Code that are relevant to
the consideration of an application for a planning consent and to the resolution
of issues arising in subsequent proceedings based on that application (whether
brought under this Act or not) are the provisions of the Planning and Design
Code as in force at the time the application was made.
(3) The provisions of the Building Rules that are relevant to the
consideration of an application for a building consent and to the resolution of
issues arising in subsequent proceedings based on that application (whether
brought under this Act or not) are the provisions of the Building Rules as in
force at the time the application was made.
(4) If a place that is the subject of an application for development
authorisation under this Act becomes a State heritage place within the meaning
of this Act, the place will be taken to have been a State heritage place for the
purposes of this section at the time the application was made.
(5) If a place that is the subject of an application for development
authorisation under this Act becomes subject to an order under the
Heritage
Places Act 1993
that requires a person to stop any work or activity, or prohibits any work
or activity, the order will be taken to have been in force for the purposes of
this section at the time the application was made.
(1) A development for which development authorisation has been granted may
be undertaken and completed in accordance with that authorisation
notwithstanding an amendment to the Planning and Design Code or the Building
Rules that takes effect after the date on which the application for the
development authorisation was made (insofar as the application relates to an
assessment in respect of the Planning and Design Code or Building
Rules).
(2) An activity
that becomes a development by virtue of an amendment to this Act, but was
lawfully commenced within 3 years before the amendment took effect, may be
continued and completed, without any development authorisation, within
3 years after the date on which the amendment took effect.
(3) A relevant authority may, in order to avoid or reduce hardship, extend
the limitation period referred to in
subsection (2)
.
(4) A reference in this section to an amendment to this Act extends to the
making of a regulation declaring an activity to constitute development and the
variation of such a regulation.
(5) In this section—
activity means an act or activity.
(a) an application for a building consent relates to—
(i) building work in the nature of an alteration to a building constructed
before the date prescribed by regulation for the purposes of this subsection;
or
(ii) a change of
classification of a building; and
(b) the building is, in
the opinion of the relevant authority, unsafe, structurally unsound or in an
unhealthy condition,
the relevant authority may require, before granting the building consent,
that building work that conforms with the requirements of the Building Rules be
carried out to the extent reasonably necessary to ensure that the building is
safe and conforms to proper structural and health standards.
(2) The relevant authority must, when imposing a requirement under
subsection (1)
, specify (in reasonable detail) the matters under
subsection (1)(b)
that must, in the opinion of the relevant authority, be
addressed.
(a) application is made for building consent for building work in the
nature of an alteration of a class prescribed by the regulations; and
(b) the relevant authority is of the opinion that the affected part of the
building does not comply with the performance requirements of the Building Code
in relation to access to buildings, and facilities and services within
buildings, for people with disabilities,
the relevant authority may require, before granting the building consent,
that building work or other measures be carried out to the extent necessary to
ensure that the affected part of the building will comply with those performance
requirements of the Building Code.
(4) The Minister may, by instrument in writing, grant an exemption from
the operation of
subsection (3)
.
(1) If building
work must be performed as a matter of urgency—
(a) to protect any person or building; or
(b) in any other circumstance of a prescribed kind,
a person may, despite any other provision of this Act (but subject to
subsection (2)
), perform the building work.
(2) If building
work is undertaken under
subsection (1)
—
(a) the person who undertakes the work must immediately notify the
relevant authority in accordance with the regulations; and
(b) if the work affects a State heritage place or a local heritage place,
the work must, so far as is reasonably practicable, be undertaken to conserve
its heritage value; and
(c) the owner of the land on which the work is carried out must, as soon
as practicable after the commencement of the work and in any event within the
prescribed period, apply for the appropriate development authorisation under
this Act; and
(d) if that development authorisation is refused, the person who
undertakes the work must, subject to any direction issued by a relevant
authority, within a period specified by a relevant authority, ensure that any
land or building affected by the work is reinstated, so far as is practicable,
to the state or condition that existed immediately before the commencement of
the work.
Maximum penalty: $60 000.
129—Urgent
work in relation to trees
(1) If a
tree-damaging activity must be undertaken in relation to a regulated tree as a
matter of urgency—
(a) to protect any person or building; or
(b) in any other circumstance of a prescribed kind,
a person may, despite any other provision of this Act (but subject to
subsection (2)
), undertake the activity.
(2) If an activity
is undertaken under
subsection (1)
—
(a) the person who undertakes the activity must notify the relevant
authority in accordance with the regulations; and
(b) the activity must, so far as is reasonably practicable, be undertaken
to cause the minimum amount of damage to the tree; and
(c) except in circumstances prescribed by the regulations, the owner of
the land on which the tree is situated must, as soon as practicable after the
occurrence of the activity and in any event within the prescribed period, apply
for the appropriate development authorisation under this Act.
Maximum penalty: $60 000.
130—Interaction
of controls on trees with other legislation
(1) The requirement to obtain approval under this Act for a tree-damaging
activity in relation to a regulated tree applies despite the fact that the
activity may be permitted under the
Native
Vegetation Act 1991
.
(2) The requirement to obtain approval under this Act for a tree-damaging
activity in relation to a regulated tree does not apply if the activity is being
carried out—
(a) under Part 5 of the
Electricity
Act 1996
; or
(b) under, or in connection with the operation of, an order under section
254 or 299 of the
Local
Government Act 1999
; or
(c) under another Act, or specified provisions of another Act, prescribed
by the regulations for the purposes of this subsection.
Division 4—Land
division certificate
(1) Subject to any
exclusion prescribed by the regulations, the following certificate is required
in relation to a development that involves the division of land under this Act,
namely a certificate from the Commission that it is satisfied that the
prescribed conditions as to development have been satisfied, or that the
applicant has, by virtue of an entitlement under the regulations, entered into a
binding agreement, supported by adequate security and, if the regulations so
require, in a form prescribed by the regulations, for the satisfaction of any
such condition.
(2) Before the Commission issues a certificate it may require the
applicant, the council for the area in which the land is situated (if any), or
any other person or body, to furnish it with appropriate information as to
compliance with a particular condition, or to comply with any requirement
prescribed by the regulations.
(3) A certificate will be issued in the prescribed manner and
form.
(4) The Commission must, as soon as practicable after issuing a
certificate under
subsection (1)
that relates to land within the area of a council, furnish the council
with such information as the regulations may require.
(5) The Commission may give a certificate under
subsection (1)
in relation to a particular stage of a development constituted by the
division of land.
(6) A certificate issued under this section will, unless extended by the
Commission within the period prescribed by the regulations, lapse at the end of
that prescribed period.
132—Activities
that affect stability of land or premises
(1) This section applies if a development approval envisages that a person
who undertakes the development will require access to other land or premises in
order to address an affect on the stability of that land or those premises that
will be caused (or is likely to be caused) on account of the undertaking of the
development (the affected site).
(2) In a case where
this section applies—
(a) the relevant
authority must ensure that a notice in the prescribed form is provided to the
owner of the affected site in accordance with the regulations (being a notice
that informs the owner that a person undertaking the development may require
access to the affected site within a period prescribed by the regulations);
and
(b) subject to
paragraph (c)
, a person undertaking the development is then entitled to gain access to
the affected site at any reasonable time in order to protect the affected site
and to carry out such other work in relation to the affected site as the owner
of the affected site may require under
paragraph (d)
; and
(c) before a person
undertaking the development seeks access under
paragraph (b)
, the person must give notice of the proposed work in accordance with the
regulations; and
(d) subject to
paragraph (e)
, the owner of the affected land may require the person who gains access
under
paragraph (b)
to undertake other work that the owner is authorised under the regulations
to require; and
(e) a person who is
subject to a requirement to undertake work under
paragraph (d)
may apply to the Court for a determination of what proportion (if any) of
the expense incurred by the person in the performance of the work should be
borne by the owner of the affected site and the person may then recover an
amount determined by the Court from the owner of the affected site as a debt in
a court of competent jurisdiction.
(3) Another person authorised by the person undertaking the development in
accordance with the regulations may gain access on behalf of that person for the
purposes of
subsection (2)(b)
.
(4) A person undertaking development who fails to comply with the
requirement to give notice under
subsection (2)(c)
or a requirement under
subsection (2)(d)
is guilty of an offence.
Maximum penalty: $10 000.
133—Access
to neighbouring land—general provision
(1) This section applies if a person reasonably requires access to a part
of a building (including a building under construction) or an allotment (a
relevant place) from an adjoining allotment in order to carry
out—
(a) an inspection for the purposes of proposed development with respect to
the relevant place (including in order to make an application under this Act
with respect to the proposed development); or
(b) any building work with respect to the relevant place; or
(c) any other prescribed activity.
(2) In a case where
this section applies, the person seeking access to the adjoining allotment may
serve notice requesting that he or she be given access on the owner of the
adjoining allotment.
(3) The notice must be in the prescribed form and must—
(a) state the reason for which access is sought; and
(b) propose a time at which, or a period for which, access is sought;
and
(c) provide information about—
(i) who would be entering the adjoining allotment if access were to be
provided; and
(ii) what they would bring with them; and
(iii) what activity or work would be carried out; and
(d) set out any other information required by the regulations.
(4) If a person who is
served with a notice under
subsection (2)
—
(a) does not respond to the notice within the prescribed period;
or
(b) responds to the notice by—
(i) refusing access; or
(ii) proposing alternative arrangements for access that are considered to
be unreasonable,
the person seeking access may apply to the council for the area in which
the adjoining allotment is situated for an authorisation to gain access under
this section.
(5) On an application
under
subsection (4)
, a council may, if it considers it reasonable to do so, issue an
authorisation permitting access on a specified basis, and on specified
conditions (if any), set out in the authorisation.
(6) A council may adopt
such procedures and processes as it thinks fit in connection with an application
under
subsection (4)
.
(7) A council must, in acting under
subsections (5)
and
(6)
, comply with any practice direction issued for the purposes of this
section by the Commission.
(8) A person to whom an authorisation is granted under
subsection (4)
must take steps to serve a copy of the authorisation on the owner of the
adjoining allotment in accordance with the regulations.
(9) A person must not, without reasonable excuse, fail to comply with an
authorisation issued by a council under this section.
Maximum penalty: $5 000.
(10) A person must not, without reasonable excuse, hinder or obstruct a
person exercising a power conferred by an authorisation issued by a council
under this section.
Maximum penalty: $5 000.
(11) A person must, in exercising a power to enter land under this
section, insofar as is reasonably practicable, minimise disturbance to the
land.
(12) A person who exercises a power to enter land under this section is
liable to pay reasonable compensation on account of any loss or damage caused by
the exercise of the power.
(13) This section does not limit the ability of a person to gain access to
land under an agreement with the owner or occupier of the land.
(14) This section does not limit the operation of
section 132
.
Division 6—Uncompleted
development
134—Action
if development not completed
(1) If—
(a) an approval is granted under this Act; but
(b) —
(i) the development to which the approval relates has been commenced but
not substantially completed within the period prescribed by the regulations for
the lapse of the approval; or
(ii) in the case of a development that is envisaged to be undertaken in
stages—the development is not undertaken or substantially completed in the
manner or within the period contemplated by the approval,
a designated authority may apply to the Court for an order under this
section.
(2) The Court must give the following persons a reasonable opportunity to
be heard at the hearing of an application under this section:
(a) the applicant;
(b) any owner or occupier of the relevant land;
(c) any other person who satisfies the Court that he or she has a material
interest in the proceedings.
(3) The Court may,
on the hearing of the application—
(a) require the
removal or demolition of any building;
(b) require the
reinstatement, so far as is practicable, of any land or building to the state or
condition that land or building was in immediately before the commencement of
the development;
(c) extend, on such conditions (if any) as the Court thinks fit, the
period within which the development may be completed;
(d) require the
performance of any work;
(e) require the making of any application for an appropriate development
authorisation under this Act;
(f) make any further or other order the Court thinks fit.
(4) A person who contravenes, or fails to comply with, an order under this
section is guilty of an offence.
Maximum penalty: $60 000.
Default penalty: $200.
(5) If the Court
makes an order under
subsection (3)(a)
,
(b)
or
(d)
and a person fails to comply with the order within the period specified by
the Court, the designated authority may cause any work contemplated by the order
to be carried out, and may recover the costs of that work, as a debt from the
person.
(6) If an amount is recoverable from a person by a designated authority
under
subsection (5)
—
(a) the designated authority may, by notice in writing to the person, fix
a period, being not less than 28 days from the date of the notice, within which
the amount must be paid by the person, and, if the amount is not paid by the
person within that period, the person is liable to pay interest charged at the
prescribed rate on the amount unpaid; and
(b) the amount together with any interest charge so payable is until paid
a charge in favour of the designated authority on any land owned by the
person.
(7) In this section—
designated authority means—
(a) a council; or
(b) a joint planning board; or
(c) the Commission; or
(d) the Minister.
(a) an approval is granted under this Act; but
(b) the development to which the approval relates has been substantially
but not fully completed within the period prescribed by the regulations for the
lapse of the approval,
a designated authority may, by notice in writing, require the owner of the
relevant land to complete the development within a period specified in the
notice.
(2) If an owner fails to carry out work as required by a notice under
subsection (1)
, the designated authority may cause the necessary work to be carried
out.
(3) The reasonable costs and expenses incurred by the designated authority
(or any person acting on behalf of the designated authority) under this section
may be recovered by the designated authority as a debt due from the
owner.
(4) If an amount is recoverable from a person by a designated authority
under this section—
(a) the designated authority may, by notice in writing to the person, fix
a period, being not less than 28 days from the date of the notice, within which
the amount must be paid by the person, and, if the amount is not paid by the
person within that period, the person is liable to pay interest charged at the
prescribed rate on the amount unpaid; and
(b) the amount together with any interest charged so payable is until paid
a charge in favour of the designated authority on any land owned by the
person.
(5) A person who has been served with a notice under this section may
appeal to the Court against the notice.
(6) An appeal against a notice under this section must be commenced within
14 days after the order is given to the appellant unless the Court allows a
longer time for the commencement of the appeal.
(7) In this section—
designated authority means—
(a) a council; or
(b) a joint planning board; or
(c) the Commission; or
(d) the Minister.
Division 7—Cancellation
of development authorisation
136—Cancellation
of development authorisation
(1) A relevant authority may, on the application of a person who has the
benefit of the authorisation, cancel a development authorisation previously
given by the relevant authority.
(2) A cancellation under this section is subject to such conditions (if
any) as the relevant authority thinks fit to impose.
Division 8—Inspection
policies
(1) The Commission must issue a practice direction that will require
councils to carry out inspections of development undertaken in their respective
areas.
(2) The practice direction may make different provision in relation to
different councils (or groups of councils).
(3) The Commission must, when preparing (or varying) the practice
direction, take into account the following matters (and may take into account
other matters):
(a) the financial and other resources of councils;
(b) the impact that a failure to inspect a certain number of developments
over a period of time may have on local communities;
(c) the various sizes of the areas of councils and differences in
population;
(d) the amount of development undertaken in the various areas of the
State;
(e) the type of development that predominates in the various areas of the
State;
(f) in relation to building work, building conditions in the various areas
of the State;
(g) the public interest in ensuring that development is undertaken in
accordance with the requirements of this Act.
(4) A council must comply with the requirements of the practice direction
as they relate to the council.
Part 11—Building
activity and use—special provisions
In this Part—
council means, in relation to any development or building
that is not within the area of a council, a person or body, or a person or body
of a class, prescribed by the regulations for the purposes of this
definition.
139—Notification
during building
(1) If building work is being carried out within the area of a council,
then—
(a) a licensed building work contractor who is carrying out the work or
who is in charge of carrying out the work; or
(b) if there is no such licensed building work contractor, the building
owner,
must, in accordance with a scheme prescribed by the regulations, notify the
council within the prescribed period of the commencement or completion of a
prescribed stage of work (a mandatory notification
stage).
(2) The notification must, if the regulations so require, be accompanied
or supported by a statement (a statement of compliance) from a
person who holds prescribed qualifications that the building work has been
carried out in accordance with the requirements of this Act.
Maximum penalty: $10 000.
(3) Subject to
subsection (4)
, a person who is carrying out building work must, if directed to do so by
the council, stop building work when a mandatory notification stage has been
reached pending an inspection by an authorised officer who holds prescribed
qualifications.
Maximum penalty: $10 000.
(4) An authorised
officer must carry out an inspection under
subsection (3)
within 24 hours after a direction is given under that subsection and,
if such an inspection is not carried out within that time, the person may
proceed with the building work.
Division 3—Party
walls and similar matters
140—Construction
of party walls
(1) If the owner of any land proposes to build a party wall, or to convert
an existing structure into a party wall, on any part of the line of junction
between the land and adjoining land, the following provisions apply:
(a) the owner (being the building owner) must serve notice on the
adjoining owner, describing the proposed wall; and
(b) if the adjoining owner consents to the building of the party wall, the
wall must be built in the position agreed between the two owners; and
(c) the cost of building the party wall is to be borne by the
2 owners in due proportion, taking into account the use that is likely to
be made of the wall by each owner; and
(d) a party wall cannot be built by the building owner without the consent
of the adjoining owner; and
(e) the owners must create easements of support in respect of the party
wall over their respective land and cause the easements to be registered under
the
Real
Property Act 1886
or lodged under the
Registration
of Deeds Act 1935
(as the case may require) and the building owner is, in the absence of
contrary agreement, liable for the expenses of, and incidental to, the
registration.
(2) Where a party wall was lawfully built before 1 January 1974
and conforms with the law of this State as in force at the time of its erection,
either owner may require the adjoining owner to create, and cause to be
registered under the
Real
Property Act 1886
or lodged under the
Registration
of Deeds Act 1935
(as the case may require), an easement of support over his or her land in
respect of the party wall, and the adjoining owner must comply with that
requirement.
(1) Subject to obtaining any appropriate approval under this Act (and
otherwise complying with this Act), a building owner has the following rights in
addition to, and without prejudice to, any rights under any other Act or at
common law:
(a) a right to make good, underpin or repair any party wall that is
defective or out of repair; and
(b) a right to pull down and rebuild any party wall that is so defective
or out of repair that it is necessary or expedient to pull it down;
and
(c) a right to raise and underpin a party wall; and
(d) a right to pull down a party wall that is of insufficient strength for
a proposed building (but the building owner must then rebuild a party wall of
sufficient strength); and
(e) a right to cut into a party wall; and
(f) a right to perform any other work in relation to the party wall
prescribed by the regulations.
(2) A building owner has a right, by virtue of this
subsection—
(a) to instal flashings
between 2 buildings, including a building on an adjoining allotment;
and
(b) without limiting
paragraph (a)
, to instal a flashing so that it overlaps a boundary.
(3) The building owner is liable to make good any damage to adjacent
premises, and the contents of adjacent premises, caused by the exercise of a
right under this section.
(4) The building owner cannot, except with the consent in writing of the
adjoining owner, exercise any right under this section unless, before doing so,
he or she has served personally or by post on the adjoining owner a notice in
writing stating the nature and particulars of the proposed work and when it is
to commence in accordance with any requirements prescribed by the
regulations.
(5) If a building
owner proposes to exercise a right conferred under this section, the adjoining
owner may, by notice in writing served personally or by post on the building
owner, require the building owner to carry out such other work on, or in
relation to, any party wall as may be reasonably necessary for the convenience
of the adjoining owner, and the building owner must comply with that requirement
except where to do so would cause loss or damage to the building owner, or would
cause undue inconvenience or delay.
(6) The adjoining owner is liable for all expenses incurred by the
building owner under
subsection (5)
.
(7) The building owner must, in the exercise of any right under this
section, take reasonable steps to protect any adjoining land or
premises.
(8) A building owner must not exercise any right under this section in
such manner, or at such time, as will cause unnecessary inconvenience to the
adjoining owner or occupier, and must perform any building work with due
diligence.
(1) A building owner, or an authorised agent or employee, may, at any
reasonable time, enter and remain on the land or premises of the adjoining owner
for the purpose of performing any work in accordance with this Division, and may
perform any act that the nature of the work requires.
(2) The building owner must serve, on the adjoining owner in accordance
with the regulations, before entering on the land or premises of the adjoining
owner or, in the case of an emergency, as early as possible, notice of intention
to enter the land or premises of the adjoining owner, stating the time at which
the building owner proposes to enter the land or premises in accordance with any
requirements prescribed by the regulations.
(3) The building owner, or an authorised agent or employee, accompanied by
a member of the police force, may break into the premises of the adjoining
owner.
(1) The expense of building a party wall, or carrying out any work in
relation to a party wall, is to be borne in due proportion by the adjoining
owners, having regard to the use that each owner is to make of the party
wall.
(2) The building owner must, within 28 days after the completion of
any work in respect of which a contribution is payable by the adjoining owner,
serve on the adjoining owner in accordance with the regulations an account
showing the cost of the building work and the proportion of that cost that the
building owner claims to be payable by the adjoining owner.
(3) If after the expiration of 28 days from the service of the
account the account remains unpaid, the building owner may, by action in any
court of competent jurisdiction, seek a determination of the amount payable to
him or her by the adjoining owner, and recover that amount as a debt.
Division 4—Classification
and occupation of buildings
144—Classification
of buildings
(1) Subject to this section, a building must have a classification
determined in accordance with the regulations.
(2) A council may assign to a building erected in its area a
classification that conforms with the regulations.
(3) If a council assigns a classification under this section, the council
must give notice in writing to the owner of the building to which the
classification has been assigned, of the classification assigned to the
building.
(4) Except with the consent of the owner, a classification cannot be
assigned to a building erected before 1 January 1974 if, as a result
of the classification being assigned to the building, the building could not
continue to be used for a purpose for which it was lawfully being used before
assignment of the classification.
(5) The owner of a building must not permit the building to be occupied
unless the building is constructed, maintained and operated in accordance with
the classification appropriate to its use.
Maximum penalty: $10 000.
Default penalty: $100.
(1) A person must not—
(a) occupy a building on which building work is carried out after the
commencement of this section unless an appropriate certificate of occupancy has
been issued for the building, or the building is of a type excluded by the
regulations from the requirements as to certificates of occupancy; or
(b) occupy a building in contravention of a certificate of
occupancy.
Maximum penalty: $10 000.
(2) A certificate of occupancy will be issued by a council.
(3) An application for a certificate of occupancy must—
(a) include any information required by the council; and
(b) be accompanied by such certificates, reports or other documentation as
the regulations may require; and
(c) be accompanied by the appropriate fee.
(4) The regulations
may provide that a report or consent from a prescribed agency or authority must
be obtained in accordance with the regulations before the application can be
granted (but if a report or consent is not received from the agency or authority
within a period prescribed by the regulations, it will be presumed, unless the
agency or authority indicates otherwise, that the agency or authority does not
desire to make a report or consents (as the case requires)).
(5) The council must consider any report supplied under
subsection (4)
before deciding the application.
(6) The council must issue the certificate if it is satisfied (in
accordance with procedures set out in the regulations and on the basis of
information provided or obtained under this section) that the relevant building
is suitable for occupation and complies with such requirements as may be
prescribed by the regulations for the purposes of this provision.
(7) A certificate of occupancy does not constitute a certificate of
compliance with the Building Rules.
(8) The regulations may specify the time within which an application
should be decided under this section.
(9) An application will be taken to have been refused if not decided
within the time specified by the regulations.
(10) A council
which refuses an application must notify the applicant in writing
of—
(a) the refusal; and
(b) the reasons for the refusal; and
(c) the applicant's right of appeal under this Act.
(11) Any appeal under this section must be commenced within 28 days
after a notice is given to the appellant under
subsection (10)
unless the Court allows an extension of time.
(12) A certificate of occupancy may apply to the whole or part of a
building.
(13) A council may, in accordance with the regulations, revoke a
certificate of occupancy in prescribed circumstances.
(1) A person may,
with the approval of a council, occupy a building on a temporary basis without a
certificate of occupancy.
(2) An approval under
subsection (1)
may be given on such conditions (if any) as the council thinks fit to
impose.
(3) A council which
refuses an application must notify the applicant in writing of—
(a) the refusal; and
(b) the reasons for the refusal; and
(c) the applicant's right of appeal under this Act.
(4) Any appeal under this section must be commenced within 28 days
after a notice is given to the applicant under
subsection (3)
unless the Court allows an extension of time.
(1) A building
certifier may exercise the powers of a council under this Division in relation
to—
(a) a building owned or occupied by the Crown, or an agency or
instrumentality of the Crown; or
(b) a building in relation to which the building certifier has issued a
building consent.
(2) For the purposes of the operation of
subsection (1)
—
(a) a reference in this Division to a council will be taken to include a
reference to a building certifier acting under
subsection (1)
; and
(b) a decision of a building certifier under this Division has the same
effect and is subject to appeal in the same way as a decision of the council
that would otherwise be exercising the relevant function under this Division;
and
(c) a building certifier is subject to the same duties and requirements as
the council that would otherwise be exercising the relevant function under this
Division.
(1) An authorised
officer may make an emergency order under this section if the authorised officer
is of the opinion that the order is necessary—
(a) because of a
threat to safety arising out of the condition or use of a building or an
excavation; or
(b) because of a threat to any State heritage place or local heritage
place.
(2) However, the power conferred by
subsection (1)(a)
may only be exercised by an authorised officer who holds prescribed
qualifications.
(3) An emergency order may require the owner of any building or land to do
any 1 or more of the following things:
(a) evacuate the building or land;
(b) not to conduct or not to allow the conduct of a specified activity or
immediately terminate a specified activity;
(c) carry out building work or other work.
(4) An emergency order may also prohibit the occupation of a building or
land or the use of a building or land for a specified activity, or an activity
of a specified class.
(5) If an owner fails to carry out work as required by an emergency order,
the council may cause the necessary work to be carried out.
(6) The reasonable costs and expenses incurred by the council (or any
person acting on behalf of the council) under this section may be recovered by
the council as a debt due from the owner.
(7) If an amount is recoverable from a person by the council under this
section—
(a) the council may, by notice in writing to the person, fix a period,
being not less than 28 days from the date of the notice, within which the
amount must be paid by the person, and, if the amount is not paid by the person
within that period, the person is liable to pay interest charged at the
prescribed rate on the amount unpaid; and
(b) the amount together with any interest charge so payable is, until
paid, a charge in favour of the council on any land owned by the
person.
(8) On completion
of any work required to be carried out by an emergency order, the owner must
notify the authorised officer in writing.
Maximum penalty: $2 000.
(9) An order under
this section must be given in writing unless the authorised officer considers
that urgent action is required, in which case it may be given orally.
(10) If the direction is given orally under
subsection (9)
, the authorised officer who gave the direction must confirm the direction
by notice in writing by 5 p.m. on the next business day.
(11) An appeal against an order under this section must be commenced
within 14 days after the order is given to the appellant unless the Court
allows a longer time for the commencement of the appeal.
(12) Subject to an order of the Court to the contrary, the operation of an
order under this section is not suspended pending the determination of an
appeal.
(13) A person who
contravenes or fails to comply with an order under this section is guilty of an
offence.
Maximum penalty: $20 000.
Default penalty: $200.
(14) It is a defence to a prosecution under
subsection (13)
if the defendant satisfies the Court that he or she was unaware of the
fact that an activity in respect of which the offence arose was the subject of
an order under this section.
(15) In this section—
building includes a building in the course of
construction;
excavation includes a well or hole.
Division 6—Swimming
pool and building safety
149—Designated
safety requirements
(1) In this section—
designated owner means—
(a) in relation to a swimming pool—
(i) if the swimming pool is a fixture to, or forms part of, land—the
owner of the land;
(ii) in any other case—the owner of the structure that constitutes
the swimming pool; and
(b) in relation to a building—the owner of the building;
prescribed event means an event or circumstance prescribed by
the regulations as constituting a prescribed event for the purposes of this
section.
(2) Without limiting any provision of the Building Code or a Ministerial
building standard, the regulations may specify requirements that are to apply in
relation to designated safety features for swimming pools or
buildings.
(3) In particular, the regulations may—
(a) require a designated owner of a swimming pool or building to ensure
that designated safety features are installed and maintained in accordance with
prescribed requirements; and
(b) require the owner of an existing swimming pool or
building—
(i) to ensure that designated safety features are installed, replaced or
upgraded before, or on the occurrence of, a prescribed event; or
(ii) to install, replace or upgrade designated safety features within a
prescribed period.
(4) A person who contravenes, or fails to comply with, a requirement under
this section (including a requirement prescribed by the regulations) is guilty
of an offence.
Maximum penalty: $15 000.
(5) The Commission may issue a practice direction that requires councils
to carry out inspections of swimming pools and buildings to ascertain compliance
with this section.
(6) A practice direction may make different provision in relation to
different councils (or groups of councils).
(7) A council must comply with the requirements of a practice direction as
it relates to the council.
(8) Nothing in this section limits a power under another section to take
action in relation to the safety of any place or building.
(1) An authorised
officer who holds prescribed qualifications or a member of an appropriate
authority may, at any reasonable time, enter and inspect any building for the
purpose of determining whether the fire safety of a building is
adequate.
(2) An authorised officer who holds prescribed qualifications must conduct
an inspection of a building under
subsection (1)
at the request of an appropriate authority or a fire authority.
(3) If an
appropriate authority is satisfied that the fire safety of a building is not
adequate, the appropriate authority may cause a notice to be served on the owner
of the building.
(4) A notice under
subsection (3)
may—
(a) require the
owner to report to the appropriate authority on the work or other measures
necessary to ensure that the fire safety of the building is adequate;
or
(b) in the case of
an emergency—
(i) require the owner to carry out a program of work, or to take any other
measure, to overcome any fire hazard; or
(ii) require the evacuation of the building; or
(iii) prohibit the occupation or use of the building or a part of the
building until the appropriate authority is satisfied that the fire hazard no
longer exists; or
(iv) require the owner to take such other action prescribed by the
regulations.
(5) A report under
subsection (4)(a)
must be provided to the appropriate authority within 2 months, or
within such longer period as the appropriate authority may allow.
Maximum penalty: $2 500.
(6) The owner may, during the period referred to in
subsection (5)
, make representations to the appropriate authority about the fire safety
of the building and the work or other measures to be carried out or
taken.
(7) An appropriate
authority may, after receiving a report under
subsection (4)
(or, in the event of a failure to provide a report in accordance with this
section), by notice given to the owner of the building—
(a) require the owner to seek an appropriate development authorisation
under this Act and, if granted, to carry out a program of work or to take other
measures to ensure that the fire safety of the building is adequate;
or
(b) prohibit the occupation or use of the building or a part of the
building until the appropriate authority is satisfied that any fire hazard no
longer exists; or
(c) require the owner to take such other action prescribed by the
regulations.
(8) On completion
of any work required to be carried out by a notice under this section, the owner
must notify the appropriate authority in writing.
Maximum penalty: $2 500.
(9) An appropriate authority may, at the request of the owner, vary a
notice under this section or may, on its own initiative, revoke a notice if
satisfied that it is appropriate to do so.
(10) An appeal against a notice under this section must be commenced
within 14 days after the notice is given unless the Court allows longer
time for the commencement of the appeal.
(11) Subject to any order of the Court to the contrary, the operation of a
notice under this section is not suspended pending the determination of an
appeal.
(12) A person who
contravenes or fails to comply with a notice under
subsection (4)(b)
or
(7)
is guilty of an offence.
Maximum penalty: $20 000.
Default penalty: $200.
(13) This section does not authorise any action inconsistent with the
Heritage
Places Act 1993
or a provision of the Planning and Design Code that relates to
heritage.
(14) Any action taken under this section should seek to achieve (in the
following order of priority)—
(a) firstly, a reasonable standard of fire safety for the occupiers of the
relevant building;
(b) secondly, the minimal spread of fire and smoke;
(c) thirdly, an acceptable fire fighting environment.
(15) No matter or thing done or omitted to be done by an appropriate
authority in good faith in connection with the operation of this section
subjects the authority to any liability.
(16) For the purposes of this section, an appropriate
authority is a body established by a council, or by 2 or more
councils, under
subsection (17)
and designated by the council or councils as an appropriate authority
under this section.
(17) The following
provisions apply with respect to the establishment of an appropriate
authority:
(a) the appropriate
authority will be constituted of—
(i) a person who holds prescribed qualifications in building surveying
appointed by the council or councils; and
(ii) an authorised
officer under Part 3 Division 5 or section 86 of the
Fire
and Emergency Services Act 2005
who, depending on the location of the council area or areas, has been
approved by the Chief Officer of the relevant fire authority to participate as a
member of the appropriate authority; and
(iii) a person with expertise in the area of fire safety appointed by the
council or councils; and
(iv) if so determined by the council or councils—a person selected
by the council or councils;
(b) the council or councils may specify a term of office of a member of
the appropriate authority (other than a member under
paragraph (a)(ii)
);
(c) the office of a member of the appropriate authority (other than a
member under
paragraph (a)(ii)
) will become vacant if the member—
(i) dies; or
(ii) completes a term of office and is not reappointed; or
(iii) resigns by written notice addressed to the council or councils;
or
(iv) is removed from office by the council or councils for any reasonable
cause;
(d) deputy members may be appointed;
(e) subject to a determination of the council or councils—the
appropriate authority may determine its own procedures (including as to
quorum).
(18) A member of an appropriate authority who has a personal interest or a
direct or indirect pecuniary interest in any matter before the appropriate
authority (other than an indirect interest that exists in common with a
substantial class of persons) must not take part in any deliberations or
decision of the authority in relation to that matter.
151—Negation
of joint and several liability in certain cases
(1) If—
(a) building work is defective; and
(b) the defect or defects arise from the wrongful acts or defaults of
2 or more persons; and
(c) those persons would, apart from this section, be jointly and severally
liable for damage or loss resulting from the defective work; and
(d) an action is brought against any 1 or more of those persons to recover
damages for that damage or loss,
the court may only give judgment against a defendant, or each defendant,
for such amount as may be just and equitable having regard to the extent to
which the act or default of that defendant contributed to the damage or
loss.
(2) An act or default for which a person is vicariously liable will be
taken to be an act or default of that person for the purposes of this
section.
152—Limitation
on time when action may be taken
(1) Despite the
Limitation
of Actions Act 1936
, or any other Act or law, no action for damages for economic loss or
rectification costs resulting from defective building work (including an action
for damages for breach of statutory duty) can be commenced more than
10 years after completion of the building work.
(2) This section does not affect an action to recover damages for death or
personal injury resulting from defective building work.
(3) The period prescribed by
subsection (1)
cannot be extended.
Part 12—Mining—special
provisions
153—Mining
tenements to be referred in certain cases to Minister
(1) In this section—
appropriate Authority or Authority means the
Minister of the Crown for the time being administering the Mining
Acts;
designated mining matter means—
(a) an application for a mining production tenement; or
(b) a proposed statement of environmental objectives under the
Petroleum
and Geothermal Energy Act 2000
.
(2) The appropriate
Authority may refer a designated mining matter to the Minister for advice and,
if the designated mining matter is such that it is required by the regulations
to be so referred to the Minister, the appropriate Authority must refer the
designated mining matter to the Minister for advice.
(3) Copies of any submissions received under the Mining Acts as a result
of public consultation on the designated mining matter must be forwarded to the
Minister for the purposes of
subsection (2)
.
(4) If, in the
opinion of the Minister or of the appropriate Authority, operations to be
conducted in pursuance of a mining production tenement are of major social,
economic or environmental importance—
(a) the Minister or
the Authority may determine that the operations are to be subject to the
processes and procedures prescribed by
Part 7 Division 2
Subdivision 4
with respect to the preparation of an EIS; and
(b) in the case of such a determination, that Subdivision will then apply
in relation to the preparation of an EIS, and a related Assessment
Report—
(i) subject to the qualification that any reference under that Subdivision
to the Commission is to have effect as if it were a reference to the Minister or
the Authority, depending on who has made the determination, but the EIS will
cover matters determined by the Minister after consultation with the Authority;
and
(ii) subject to any other modifications as may be prescribed by the
regulations.
(5) The Minister,
after obtaining and considering a report of a prescribed kind on a designated
mining matter referred for advice under this section and after considering the
terms of any relevant EIS, must advise the appropriate Authority on the steps
that should be taken (including, in relation to an application for a mining
production tenement, whether the application should or should not be granted or,
as relevant, what conditions or requirements should be included in a mining
production tenement or a statement of environmental objectives) in order to
recognise and address actual or potential adverse effects on the
environment.
(6) If the appropriate Authority does not agree with advice tendered under
subsection (5)
, it must refer the matter to the Governor and the Governor will determine
whether the Authority should adhere to the advice (after considering the terms
of any relevant EIS).
(7) The appropriate
Authority may, with the concurrence of the Minister, determine that it is
appropriate that proposed development associated with mining operations within
the ambit of
subsection (4)(a)
also be assessed under this section and, if the Authority makes such a
determination, the Authority may, by notice published in the Gazette, combine
the assessment of the proposed development with the assessment of the relevant
mining operations and, in such a case—
(a) the proposed development associated with the mining operations must
also be considered under the relevant EIS; and
(b) the Minister may deal with the development under
section 108
as if the development had been declared to be impact assessed
development.
(1) This Part does not limit the ability of the Minister to make a
declaration under
section 101(1)(c)
in respect of a proposal that involves—
(a) proposed mining operations on a mining tenement; and
(b) proposed development associated with the mining operations.
(2) For the avoidance of doubt, a determination under this Part with
respect to the preparation of an EIS does not bring the relevant mining
operations within the ambit of
Part 7 Division 2
Subdivision 4
(but may bring an associated development within the ambit of that
Subdivision by virtue of the operation of
section 153(7)
).
(3) Except as
provided in this Part, this Act does not prevent, or otherwise affect,
operations carried on in pursuance of any of the Mining Acts.
(4) This Act does
not prevent, or otherwise affect, the operation of a private mine.
(5) The operation of
subsections (3)
and
(4)
is subject to any provision made by the regulations as to the application
of the Building Rules to any building work carried out in connection with
operations carried on in pursuance of any of the Mining Acts.
Part 13—Infrastructure
frameworks
Division 1—Infrastructure
delivery schemes
Subdivision 1—Establishment
of scheme
(1) The Minister may
initiate a scheme under this Division in relation to the provision of essential
infrastructure (and the undertaking of any related development).
(2) The Minister may act under this section—
(a) on the Minister's own initiative; or
(b) at the request of another person or body interested in the provision
or delivery of infrastructure.
(3) The Minister will
initiate a scheme by preparing a draft outline of the scheme
that—
(a) provides detailed information about—
(i) the nature and intended scope of the infrastructure; and
(ii) any related development that is proposed to be undertaken as part of
the scheme; and
(b) identifies the location in relation to which it is proposed that the
scheme will be established; and
(c) provides information about the proposed timing or staging of the
various elements of the scheme; and
(d) assesses the costs and benefits of the scheme; and
(e) outlines a funding arrangement for the scheme; and
(f) if a funding
arrangement includes a proposal for the collection of contributions under
Subdivision 3
—specifies the area or areas (to be called a contribution
area) in relation to which it is proposed that the contributions are to
be imposed; and
(g) provides information about the person or body that will be carrying
out the work envisaged by the scheme (to the extent that this is known);
and
(h) identifies any infrastructure or other assets that might be expected
to be transferred to another entity when the scheme has been completed;
and
(i) provides such other information as the Minister thinks fit.
(4) In giving consideration to the establishment of a contribution area
under
subsection (3)(f)
, consideration must be given to—
(a) the area or areas which will benefit from any infrastructure or works
to be provided or undertaken under the proposed scheme; and
(b) the extent to which it may be possible for contributions towards the
costs of the scheme to be equitably proportioned between potential
beneficiaries; and
(c) the extent to which the contribution area may overlap with another
contribution area under another scheme (or proposed scheme).
(5) The Minister, in preparing the draft outline, must—
(a) seek the advice of the Commission; and
(b) take reasonable steps to consult with the council within whose area
the scheme is proposed to be undertaken and, if relevant, any council whose area
may include the whole or any part of a proposed contribution area,
any may consult with any other person or body as the Minister thinks
fit.
(6) The Minister will
then publish the draft outline—
(a) in the Gazette; and
(b) on the SA planning portal.
(7) The Minister will then (at a time determined by the Minister) refer
the proposed scheme to the Chief Executive for the appointment of a scheme
coordinator.
(1) The Chief Executive
must, on a referral under
section 155
—
(a) appoint a person to
act as the scheme coordinator; or
(b) constitute a
committee to be appointed as the scheme coordinator; or
(c) appoint a precinct authority to act as the scheme
coordinator.
(2) In a case where
subsection (1)(a)
applies, the Chief Executive may replace the person appointed under that
subsection from time to time as the Chief Executive thinks fit.
(3) In a case where
subsection (1)(b)
applies, the Chief Executive may—
(a) constitute the committee as the Chief Executive thinks fit;
and
(b) appoint or remove persons to or from the committee from time to time
as the Chief Executive thinks fit; and
(c) determine any matter relevant to the operation and procedures of the
committee.
(4) An appointment by the Chief Executive under this section will be on
conditions determined by the Chief Executive.
157—Consideration
of proposed scheme
(1) A scheme
coordinator has the following functions in relation to a proposed
scheme:
(a) to prepare scoped and costed proposals for the scheme that accord with
any relevant design standards;
(b) to develop a work program for the scheme;
(c) to undertake consultation in relation to the scheme in accordance with
any requirement under the Community Engagement Charter;
(d) if it is proposed that a funding arrangement should be established
under this Division—to develop the funding arrangement;
(e) such other functions assigned by the Minister after consultation with
the Chief Executive.
(2) In addition to the other provisions of this Division, in developing a
funding arrangement that includes a proposal for the collection of contributions
under
Subdivision 3
, consideration must be given to applying the principle that funding should
seek to distribute costs over the lifetime of the infrastructure (or over some
other appropriate period).
(3) The scheme coordinator will, after taking the steps set out in
subsection (1)
, prepare a report on the outcome of its activities and furnish a copy of
the report to the Minister.
(1) The Minister may,
on the receipt of a report on a proposed scheme furnished by a scheme
coordinator—
(a) determine to
proceed with the scheme with any variations, exclusions or inclusions as the
Minister thinks fit; or
(b) determine not to proceed with the scheme.
(2) If the Minister decides to proceed under
subsection (1)(a)
, the Minister must cause a final outline of the scheme to
be—
(a) notified in the Gazette; and
(b) published on the SA planning portal.
(3) A funding arrangement that forms part of a scheme takes effect subject
to obtaining an approval under
Subdivision 2
.
(4) The Minister may,
if the Minister considers it necessary or appropriated to do so, vary an outline
of the scheme at any time.
(5) A variation under
subsection (4)
may include a proposal to vary a funding arrangement that has been
approved under
Subdivision 2
.
(6) A variation under
subsection (4)
will be made by the Minister by instrument—
(a) notified in the Gazette; and
(b) published on the SA planning portal.
(7) The Minister may, in constituting a scheme, include or address any
other matter as the Minister thinks fit.
159—Role
of scheme coordinator in relation to delivery of scheme
The scheme coordinator has the following functions in relation to a scheme
established under this Division:
(a) to oversee the delivery of any infrastructure or works that form part
of the scheme;
(b) if a funding arrangement is approved under this Division—to
administer the funding arrangement;
(c) to provide advice to the Minister about what should happen on the
completion of the works associated with the scheme;
(d) to provide advice on any other matter at the request of the Minister
or as the scheme coordinator thinks fit;
(e) such other functions assigned by the Minister after consultation with
the Chief Executive.
Subdivision 2—Funding
arrangements
(1) A funding
arrangement established under this Division may—
(a) include 1 or more of the following:
(i) the provision of funds from public or private sources (including by
the Treasurer providing guarantees if the Treasurer thinks fit);
(ii) exemptions from 1 or more taxes, levies or local government
rates imposed under a law of the State;
(iii) the collection of contributions under
Subdivision 3
, including by designating the relevant contribution area or areas;
and
(b) include a scheme for rebates and other adjustments in relation to
contributions that would be otherwise payable under
Subdivision 3
(and any such scheme will have effect according to its terms);
and
(c) provide for any
charge or other amount to be imposed, collected, rebated or adjusted according
to a determination of ESCOSA, or of some other specified person or body
(including a determination that is made after the scheme has been approved under
this section); and
(d) include a scheme for other works to be undertaken on an "in kind"
basis; and
(e) provide for other matters determined by the Minister.
(2) In connection with
subsection (1)
—
(a) ESCOSA has (in addition to ESCOSA's functions and powers under the
Essential
Services Commission Act 2002
)—
(i) the ability to make a determination for the purposes of
subsection (1)(c)
; and
(ii) any other functions and powers conferred by regulations made under
this Act; and
(b) if ESCOSA is to act under
subsection (1)(c)
, the
Essential
Services Commission Act 2002
may apply subject to such modifications as may be prescribed by
regulations made on the recommendation of the Minister after consultation with
ESCOSA.
(3) A funding
arrangement has no force or effect unless or until it has been approved by the
Governor by notice published in the Gazette.
(4) The Governor may vary or revoke a funding arrangement approved under
subsection (3)
by further notice published in the Gazette.
(5) If the Governor approves or varies a funding arrangement under this
section, the Minister must—
(a) prepare a report that sets out the funding arrangement and information
about any contribution that is to be collected under
Subdivision 3
or, if relevant, the extent of a variation; and
(b) furnish a copy of the report to the ERD Committee; and
(c) publish a copy of the report on the SA planning portal.
A liability of the Crown arising by virtue of a guarantee under an approved
funding arrangement is to be paid out of the Consolidated Account (which is
appropriated to the necessary extent).
162—Exemptions
from taxes and levies
An exemption from a tax, levy or local government rate under an approved
funding arrangement will have effect by force of this section (and despite any
other Act).
Subdivision 3—Scheme
contributions
163—Application
of Subdivision
(1) This Subdivision applies in order to raise contributions for the
purposes of a scheme that is undertaken under this Division.
(2) The
contributions will apply in relation to an area of the State designated as a
contribution area by the relevant funding arrangement established under
Subdivision 2
.
(3) To avoid doubt,
a contribution area under a scheme may overlap with a contribution
area under another scheme.
(4) In a case where
subsection (3)
applies, the relevant contributions will be collected separately and the
succeeding provisions of this Subdivision will apply accordingly.
164—Contributions
by constituent councils
(1) If this Subdivision applies in relation to a contribution area, the
council or councils whose areas or parts of whose areas fall within the
contribution area (the constituent councils) are responsible to
make a contribution under this Subdivision based on an amount specified by the
Minister in accordance with this Subdivision in respect of each financial year
with respect to which this Subdivision applies.
(2) Subject to this
section, liability for the amount to be contributed by constituent councils will
be shared between them—
(a) if the charge
under
section 167
is based on the value of rateable land—
(i) unless
subparagraph (ii)
or
(iii)
applies, in the proportions that the capital value of the rateable land in
the contribution area is distributed amongst the areas of the councils (and this
subparagraph applies despite the fact that an individual council uses a
different basis to impose the charge);
(ii) if all of the
constituent councils base their general rates on the site value of land—in
the proportions that the site value of the rateable land in the contribution
area is distributed amongst the areas of the councils;
(iii) if all of the
constituent councils base their general rates on the annual value of
land—in the proportions that the annual value of the rateable land in the
contribution area is distributed amongst the areas of the councils;
(b) if the charge is a fixed amount on all rateable land—in
proportion to the number of rateable properties situated in the area of each
council (being properties also situated in the contribution area);
(c) if the charge is a fixed amount that depends on the purpose for which
rateable land is used—in proportion to the number of rateable properties
used for each relevant purpose that are in the area of each council and also in
the contribution area;
(d) if the charge is based on the area of rateable land—in the
proportions that the area of the rateable land in the contribution area is
distributed amongst the areas of the councils;
(e) if the charge is based on the purpose for which rateable land is used
and the area of rateable land—in the proportions that the area of the
rateable land in the contribution area that is used for each purpose is
distributed amongst the areas of the councils;
(f) if the charge is based on the location of rateable land—in
proportion to the number of rateable properties situated within the location or
locations in the area of each council (being properties also situated in the
contribution area).
(3) The Minister
may, in connection with the operation of
subsection (2)
, determine that there should be differentiating factors applied with
respect to the calculation of the respective shares of the constituent councils
taking into account any matter prescribed by the regulations and make
adjustments to the shares that the constituent councils would otherwise
contribute on the basis of these factors.
(4) The share of each council will be determined by the Minister after
consultation with the council and the scheme coordinator.
(5) A council must, at the request of the Minister, supply the Minister
with information in the possession of the council to enable the Minister to
determine shares under
subsections (2)
and
(3)
.
(6) The Minister must cause notice of the determination of a council's
share to be given to the council and to be published in the Gazette.
(7) A regulation cannot be made for the purposes of this section unless
the Minister has given the LGA notice of the proposal to make a regulation under
this section and given consideration to any submission made by the LGA within a
period (of at least 21 days) specified by the Minister.
(8) In this section—
rateable land means rateable land under the
Local
Government Act 1999
.
(1) A council's share of the amount to be contributed by the constituent
councils is payable by the council in approximately equal instalments on
30 September, 31 December, 31 March and 30 June in the year
to which the contribution relates in accordance with a determination of the
Minister and interest accrues on any amount unpaid at the rate and in the manner
prescribed by regulation.
(2) An amount payable by a council under this section and any interest
that accrues in respect of that amount is recoverable as a debt in accordance
with a scheme prescribed by the regulations.
166—Funds
may be expended in subsequent years
To avoid doubt, if an amount paid by a council under this Subdivision is
not spent in the financial year in respect of which it was paid, it may be spent
in a subsequent financial year.
167—Imposition
of charge by councils
(1) In order to reimburse itself for the amounts contributed (or to be
contributed) under this Subdivision, a council must impose a charge on rateable
land in the contribution area.
(2) A charge must be consistent with—
(a) the funding arrangement established under
Subdivision 2
; and
(b) any determination or direction of the Minister.
(3) Except to the extent that the contrary intention appears,
Chapter 10 of the
Local
Government Act 1999
applies to and in relation to a charge as if it were a separate rate under
that Chapter.
(4) Without
limiting the operation of any other provision of this Act, the following
provisions apply with respect to the application of Chapter 10 of the
Local
Government Act 1999
to and in relation to a charge:
(a) section 154(1),
(2) and (3) of that Act will not apply in relation to the charge and the
basis for the charge will be chosen from the following (as set out in the
relevant funding arrangement):
(i) the value of rateable land; or
(ii) a fixed charge of the same amount on all rateable land; or
(iii) a fixed charge of an amount that depends on the purpose for which
rateable land is used; or
(iv) the area of rateable land; or
(v) the purpose for which rateable land is used and the area of the land;
or
(vi) the location of rateable land;
(b) if the value of
rateable land is the basis for the charge under
paragraph (a)
, a council must use capital value, site value or annual value as the basis
to impose the charge;
(c) if a fixed charge is the basis for the charge under
paragraph (a)
, then section 152 of that Act will apply subject to any modifications
prescribed by the regulations;
(d) if relevant, the purposes for which land is used that may be the basis
for the charge under
paragraph (a)
will be purposes prescribed by the regulations;
(e) despite section 154(6) of that Act, a charge under this
Subdivision may be declared more than 1 month before the commencement of a
financial year to which the charge relates;
(f) section 151(5) of that Act will not apply in relation to the
charge;
(g) section 156 of that Act will apply (subject to the use of any
differentiating factor under
paragraph (a)
);
(h) any other section, or part of any other section, of that Act
prescribed by the regulations will not apply in relation to the
charge;
(i) the regulations may modify the operation of Chapter 10 of that
Act in any other respect.
(5) To avoid doubt, nothing in
subsection (4)
prevents the operation of section 158 of the
Local
Government Act 1999
.
(6) A charge is not invalid because it raises more or less than the amount
that the council must contribute under this Subdivision.
(7) A regulation cannot be made for the purposes of this section unless
the Minister has given the LGA notice of the proposal to make a regulation under
this section and given consideration to any submission made by the LGA within a
period (of at least 21 days) specified by the Minister.
(1) A council is
entitled to be paid an amount determined in accordance with the regulations on
account of the costs of the council in complying with the requirements of this
Subdivision.
(2) Regulations made for the purposes of
subsection (1)
may—
(a) provide a method or methods by which a council's costs are to be
determined, including by the use of estimates or prescribed amounts in
prescribed circumstances; and
(b) limit any calculation of costs to amounts prescribed as fair
costs.
(3) A payment under
subsection (1)
must be paid in accordance with the regulations.
(4) A regulation cannot be made for the purposes of this section unless
the Minister has given the LGA notice of the proposal to make a regulation under
this section and given consideration to any submission made by the LGA within a
period (of at least 21 days) specified by the Minister.
(1) The Chief Executive must establish a fund for the purposes of each
scheme that provides for the imposition of a charge under
Subdivision 3
.
(2) The fund will consist of—
(a) any money payable by a council and recovered under
Subdivision 3
; and
(b) any income and accretions produced by the investment of money from the
fund; and
(c) any money advanced or made available by the Treasurer for the purposes
of the fund; and
(d) any money appropriated from the Consolidated Account for payment into
the fund; and
(e) other money paid into the fund under this or any other Act.
(3) The fund will be applied towards the purposes of the relevant scheme
in accordance with any directions or approvals of the Treasurer made or given
after consultation with the Minister, including so as to provide for, or to make
reimbursements for, payments that have already been made.
(4) The Minister may, after seeking the advice of the Treasurer, invest
money that is not immediately required for the purposes of the fund as the
Minister thinks fit.
A fund established under this Subdivision will be taken to form part of the
accounts of the Department for the purposes of the
Public
Finance and Audit Act 1987
.
(1) The Minister may, on the recommendation of, or after consultation
with, the project coordinator, wind up a scheme under this Division by
notice—
(a) notified in the Gazette; and
(b) published on the SA planning portal.
(2) The Minister may, on the winding up of a scheme, by notice published
in the Gazette, transfer the assets, rights and liabilities of a prescribed
body—
(a) to the Minister; or
(b) to the Crown; or
(c) to another agency or instrumentality of the Crown; or
(d) with the agreement with the person or body—to a person or body
that is not an agent or instrumentality of the Crown.
(3) If a fund has been
established under
Subdivision 4
for the purposes of the scheme that is wound up under this section, the
Treasurer may, by notice published in the Gazette—
(a) wind up the fund; and
(b) transfer the balance of the fund—
(i) to the Planning and Development Fund; or
(ii) to another fund or account determined by the Treasurer.
(4) Money transferred
under
subsection (3)
may be applied for a purpose determined or approved by the Treasurer
(which may be a purpose that is unrelated to the purposes of the scheme that is
being wound up).
(5) The Treasurer must consult with the Minister before the Treasurer acts
under
subsection (3)
or
(4)
.
(6) In this section—
prescribed body means—
(a) a Minister; or
(b) another agency or instrumentality of the Crown.
Division 2—Infrastructure
powers
In this Division—
designated entity means—
(a) the Minister; or
(b) another Minister; or
(c) any other agency or instrumentality of the Crown declared to be a
designated entity under this Division by proclamation; or
(d) the Chief Executive; or
(e) a council; or
(f) person or body acting in accordance with a scheme under
Division 1
; or
(g) a person or body declared to be a designated entity under this
Division by another Act;
lake includes an artificial body of water declared by
regulation to be a lake under this Division;
road means any street, road, thoroughfare, terrace, court,
lane, alley, cul-de-sac, or place commonly used by the public, or to which the
public are permitted to have access, and includes a part of a road;
roadwork means—
(a) the construction of a road; or
(b) the maintenance or repair of a road; or
(c) the alteration of a road; or
(d) the construction of drains and other structures for the drainage of
water from a road; or
(e) the installation of fences, railings, barriers or gates; or
(f) the installation, maintenance or alteration of traffic islands or
parking bays; or
(g) the improvement of a road, including (for example)—
(i) landscaping and beautification; or
(ii) installation of road lighting; or
(h) the installation of amenities or equipment on or adjacent to a road
for the use, enjoyment or protection of the public; or
(i) the installation of signs on or adjacent to a road for the use or
benefit of the public; or
(j) any work in connection with a road;
traffic control device means a sign, signal, marking,
structure or other device or thing, to direct or warn traffic on, entering, or
leaving, a road, and includes a traffic cone, barrier, structure or other device
or thing to wholly or partially close a road or part of a road;
water management works means—
(a) holding water in a watercourse, dam, reservoir or lake, or by other
means; or
(b) diverting water (including into an aquifer), disposing of water to
another place, or dealing with water in another way; or
(c) deepening, widening or changing the course of any watercourse,
deepening or widening a dam, reservoir or lake, or taking action to establish or
remove any obstruction to the flow of water; or
(d) undertaking an activity that may affect access to any water;
or
(e) undertaking any other work of a prescribed kind.
For the purposes of this Division, infrastructure works includes any of the
following in relation to essential infrastructure (or proposed essential
infrastructure):
(a) installing, altering, adding to or demolishing or removing essential
infrastructure;
(b) operating, maintaining, testing, repairing or replacing essential
infrastructure;
(c) excavating or remediating any land;
(d) inspecting, examining or surveying any land and for that
purpose—
(i) fixing posts, stakes or other makers; or
(ii) digging trenches or sink holes; or
(iii) removing samples for analysis;
(e) erecting, constructing, altering or demolishing or removing any
structure, building, fence, barrier, bank or levee;
(f) carrying out any roadworks;
(g) carrying out activities constituting the installation, maintenance,
alteration, operation or removal, or causing the installation, maintenance,
alteration, operation or removal, of a traffic control device on, above or near
a road;
(h) carrying out activities constituting the erection, construction,
laying down, making, alteration or removal of buildings, structures, notices or
signs, over, under, along, across, or adjacent to, a road or railway;
(i) without limiting a preceding paragraph, installing or removing any
notice or sign;
(j) carrying out any water management works;
(k) damaging or removing vegetation;
(l) carrying out other work reasonably necessary in connection with any
activity referred to above (including with respect to any facilities, works or
services connected with essential infrastructure).
(1) A designated entity
may carry out any infrastructure works if authorised to so do by or under this
or any other Act.
(2) An authorisation under
subsection (1)
includes an authorisation included in a scheme under
Division 1
.
(3)
Subsection (1)
—
(a) operates subject to the provisions of any Act under which the
authorisation is given; and
(b) operates subject to any requirement to obtain a development
authorisation under this Act; and
(c) operates subject to any other Act that requires an assessment,
decision, permission, consent, approval, authorisation, certificate or other
authority required under another Act.
(4) A designated entity must make good any damage to a road arising from
works carried out under this section.
(5) Subject to
subsection (6)
, a designated entity must, in relation to a proposal that involves
disturbing the surface of a road, or that otherwise relates to a
road—
(a) inform the relevant road maintenance authority of the proposal at
least 28 days before the proposed commencement of any work; and
(b) give the relevant road maintenance authority a reasonable opportunity
to consult with the designated entity in relation to the matter; and
(c) ensure that proper consideration is given to the views of the road
maintenance authority.
(6) In a case of
emergency, the designated entity need only comply with
subsection (5)
to such extent as is practicable in the circumstances.
(7) The provisions of the
Road
Traffic Act 1961
apply in relation to a traffic control device installed, maintained,
altered or operated under this Division as if a designated entity were a road
authority authorised under Part 2 of that Act to install, maintain, alter
or operate the device.
(1) For the purpose of
undertaking any work or activity in connection with the exercise of a power
under this Division, a person authorised by a designated entity
may—
(a) enter and pass over any land; and
(b) bring onto any land any vehicles, plant or equipment; and
(c) temporarily occupy land; and
(d) do anything else reasonably required in connection with the exercise
of the power.
(2) A person must, in exercising a power under
subsection (1)
, insofar as is reasonably practicable, minimise disturbance to any
land.
(3) The designated entity that has acted under
subsection (1)
is liable to pay reasonable compensation on account of any loss or damage
caused by the exercise of a power under that subsection.
(4) A person must not, without reasonable excuse, hinder or obstruct a
person exercising a power under this section.
Maximum penalty: $20 000.
(5) This section does not limit or derogate from the powers of a
designated entity or another person or body under another Act.
(1) A designated entity may, with the consent of the Minister, acquire
land for a purpose associated with infrastructure works under and in accordance
with the
Land
Acquisition Act 1969
(but such consent is not required in the case of a Minister acting as a
designated entity as any such Minister is to be taken, by operation of this
Division, to be authorised to acquire land under that Act).
(2) Nothing in this section affects—
(a) the ability of a designated entity to acquire land by agreement;
or
(b) the operation of any other section of this Act.
177—Incorporation
of Chief Executive
(1) The Chief Executive is, for the purposes of this Part, constituted as
a body corporate.
(2) The body corporate—
(a) is an instrumentality of the Crown; and
(b) has perpetual succession and common seal; and
(c) is capable of suing and being sued; and
(d) holds its property on behalf of the Crown; and
(e) has the functions assigned to it by or under this or any other Act;
and
(f) has all the powers of a natural person together with the powers
conferred on the Chief Executive by or under this or any other Act and may do
anything necessary or convenient to be done in the exercise of its
functions.
(1) The Chief Executive
may, with the approval of the Minister and after consultation with the scheme
coordinator, take over any work envisaged by a scheme that has been established
under
Division 1
(and for that purpose carry out any infrastructure works under
Division 2
for the purposes of the scheme).
(2) The Minister may, in connection with an approval under
subsection (1)
, by notice published in the Gazette, transfer any assets, rights or
liabilities that have been established or accrued as part of the scheme to the
Chief Executive.
Part 14—Land
management agreements
179—Land
management agreements
(1) A designated authority may enter into an agreement relating to the
development, management, preservation or conservation of land with the owner of
the land.
(2) Subject to
subsection (3)
, a greenway authority may enter into an agreement relating to the
management, preservation or conservation of land with the owner of the land
if—
(a) the land comprises a greenway, or part of a greenway, for which the
authority is responsible; or
(b) where the land does not comprise a greenway—it is a term of an
access agreement under the
Recreational
Greenways Act 2000
that the greenway authority will enter into the agreement.
(3) A greenway
authority that is not the Minister under the
Recreational
Greenways Act 2000
may only enter into an agreement under
subsection (2)
if the agreement has been approved by that Minister.
(4) A designated authority must, in considering whether to enter into an
agreement under this section which relates to the development of land and, if
such an agreement is to be entered into, in considering the terms of the
agreement, have regard to—
(a) the provisions of the Planning and Design Code and to any relevant
development authorisation under this Act; and
(b) the principle that the entering into of an agreement under this
section by the designated authority should not be used as a substitute to
proceeding with an amendment to the Planning and Design Code under this
Act.
(5) Agreements
entered into under this section must be registered in accordance with the
regulations (but the fact that an agreement is not registered does not affect
its validity or effect).
(6) A register must be kept available for public inspection (without
charge) in accordance with the regulations.
(7) A person is entitled, on payment of the prescribed fee, to a copy of
an agreement registered under
subsection (5)
.
(8) A designated authority or a greenway authority has power to carry out
on private land any work for which provision is made by agreement under this
section.
(9) An agreement
under this section may include an indemnity from a specified form of liability
or right of action, a waiver or exclusion of a specified form of liability or
right of action, an acknowledgment of liability, or a disclaimer, on the part of
a party to the agreement.
(10) A provision under
subsection (9)
may be expressed to extend to, or to be for the benefit of, a person or
body who or which is not a party to the agreement and, in such a case, the
person or body may enforce, or obtain the benefit of, the provision as if the
person or body were a party to the agreement.
(11) An owner of land must not enter into an agreement under this section
unless all other persons with a legal interest in the land consent.
(12) The
Registrar-General must, on an application of a party to an agreement made for
the purposes of this section, note the agreement against the relevant instrument
of title or, in the case of land not under the provisions of the
Real
Property Act 1886
, against the land.
(13) An agreement under this section has no force or effect under this Act
until a note is made under
subsection (12)
.
(14) Where a note has been entered under
subsection (12)
, the agreement is binding on the current owner of the land whether or not
the owner was the person with whom the agreement was made and notwithstanding
the provisions of the
Real
Property Act 1886
.
(15) The Registrar-General must, if satisfied on the application of a
designated authority or greenway authority, or the owner of the land, that an
agreement in relation to which a note has been made under this section has been
rescinded or amended, enter a note of the rescission or amendment against the
instrument of title, or against the land.
(16) An agreement under this section may provide for remission of rates or
taxes on the land but, except as so provided, such an agreement does not affect
the obligations of an owner of land under any other Act.
(17) An agreement under this section entered into by a council or greenway
authority must not provide for the remission of rates or taxes payable to the
Crown unless the Minister consents to the remission, and such an agreement
entered into by the Minister must not provide for the remission of rates or
taxes payable to a council unless the council consents to the
remission.
(18) The existence of an agreement under this section may be taken into
account when assessing an application for a development authorisation under this
Act.
(19) In this section—
designated authority means—
(a) the Minister; or
(b) another Minister designated by the Governor, by notice published in
the Gazette, as being a designated authority for the purposes of this section;
or
(c) a council;
greenway authority means—
(a) the Minister
for the time being administering the
Recreational
Greenways Act 2000
; or
(b) an association incorporated under the
Associations
Incorporation Act 1985
that has been approved by the Minister referred to in
paragraph (a)
as a greenway authority for the purposes of this definition;
owner of land includes—
(a) a person who has the care, control or management of a reserve;
or
(b) a mortgagee in possession of the land.
180—Land
management agreements—development applications
(1) Subject to this section, a designated authority may enter into an
agreement under this section with a person who is applying for a development
authorisation under this Act that will, in the event that the relevant
development is approved, bind—
(b) any other
person who has the benefit of the development authorisation; and
(c) the owner of the relevant land (if he or she is not within the ambit
of
paragraph (a)
or
(b)
and if the other requirements of this section are satisfied).
(2) An agreement under this section may relate to any matter that the
person applying for the development authorisation and the designated authority
agree is relevant to the proposed development (including a matter that is not
necessarily relevant to the assessment of the development under this
Act).
(3) However, the parties proposing to enter into an agreement must have
regard to—
(a) the provisions of the Planning and Design Code; and
(b) the principle that the entering into of an agreement under this
section by the designated authority should not be used as a substitute to
proceeding with an amendment to the Planning and Design Code under this
Act.
(4) An agreement under this section cannot require a person who has the
benefit of the relevant development authorisation to make a financial
contribution for any purpose that is not directly related to an issue associated
with the development to which the agreement relates.
(5) Agreements
entered into under this section must be registered in accordance with the
regulations (but the fact that an agreement is not registered does not affect
its validity or effect).
(6) A register must be kept available for public inspection (without
charge) in accordance with the regulations.
(7) A person is entitled, on payment of the prescribed fee, to a copy of
an agreement registered under
subsection (5)
.
(8) A development to which an agreement under this section relates cannot
be commenced pursuant to the relevant development approval unless or until the
agreement has effect under this section.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(9) An agreement
under this section does not have effect unless or until it is noted against the
relevant instrument of title or land under this section.
(10) If an owner of
the land is not a party to an agreement, an application to note the agreement
against the relevant instrument of title or the land cannot be made without the
consent of the owner (and the owner has a discretion as to whether or not to
give his or her consent under this subsection).
(11) An owner of land must not enter into an agreement, or give a consent
under
subsection (10)
, unless all other persons with a legal interest in the land
consent.
(12) A consent must be given in a manner and form determined by the
Registrar-General.
(13) If the
Registrar-General is satisfied that the requirements of this section have been
satisfied, the Registrar-General must, on an application of a party to an
agreement, note the agreement against the relevant instrument of title or, in
the case of land not under the provisions of the
Real
Property Act 1886
, against the land.
(14) Where a note
has been entered under
subsection (15)
, the agreement is binding on the current owner of the land whether or not
the owner was an initial party to the agreement or the person who gave any
consent for the purposes of
subsection (10)
, and notwithstanding the provisions of the
Real
Property Act 1886
.
(15) The
Registrar-General must, if satisfied on the application of a party to the
agreement, the Minister, or any owner of the relevant land, that an agreement
under this section has been rescinded or amended, enter a note of the rescission
or agreement against the instrument of title, or against the land.
(16) If an agreement under this section does not have effect under this
section (see
subsection (9)
) within the period prescribed by the regulations, the designated authority
may, by notice given in accordance with the regulations, lapse the relevant
development approval (and the agreement will then be rescinded by force of this
subsection).
(17) Despite a preceding subsection, an agreement under this section
cannot make provision with respect to any matter excluded from the ambit of this
section by the regulations.
(18) Nothing in this section affects or limits the operation of
section 179
.
(19) In this section—
designated authority means—
(a) the Minister; or
(b) another Minister designated by the Governor, by notice published in
the Gazette, as being a designated authority for the purposes of this section;
or
(c) a council.
Part 15—Funds
and off-set schemes
Division 1—Planning
and Development Fund
(1) The Fund at the Treasury known as the Planning and Development
Fund continues in existence.
(2) The following amounts must be paid into the Fund:
(a) money made available by the Treasurer out of appropriations authorised
by Parliament for the purposes of the Fund;
(b) all money derived by the Minister from the sale, leasing or other
disposal of land by the Minister of land vested in the Minister;
(c) all loans raised by the Minister for the purposes of this
Act;
(d) all other money that is required to be paid into the Fund by or under
this or any other Act (including by regulation under this Act).
(3) The Minister may borrow money for the purposes of this Act on terms
and conditions approved by the Treasurer.
182—Application
and management of Fund
(1) The money standing to the credit of the Fund may be used by the
Minister for all or any of the following purposes:
(a) the acquisition, management or development of land, or any purpose
related to the acquisition, management or development of land, under this
Act;
(b) the payment of money (by way of compensation or in other ways) which
the Minister becomes liable to pay under this Act;
(c) the payment of rates, taxes or other charges due and payable by the
Minister in respect of land vested in or held by the Minister;
(d) the transfer to any reserve for the repayment of money borrowed by the
Minister for the purposes of this Act;
(e) the payment of principal, interest or expenses in respect of money
borrowed by the Minister for the purposes of this Act;
(f) the management and development of property vested in the
Minister;
(g) any purposes authorised by or under this Act (including by regulation)
as a purpose for which the Fund may be applied;
(h) assistance to councils in the provision and development of public land
for conservation and recreation;
(i) assistance or grants to—
(i) a joint planning board;
(ii) another entity acting under this Act; or
(iii) an entity acting under the
Urban
Renewal Act 1995
.
(1) The Minister must cause proper accounts to be kept in relation to the
Fund.
(2) The Auditor-General may at any time, and must at least once in each
year, audit the accounts of the Fund.
(1) In this section—
designated entity means—
(a) the Minister; or
(b) a joint planning board or a council acting with the approval of the
Minister.
(2) A designated entity may establish a scheme under this section that is
designed to support or facilitate—
(a) development that may be in the public interest or otherwise considered
by the designated entity as being appropriate in particular circumstances
(including by the provision of facilities at a different site); or
(b) planning or development initiatives that will further the objects of
this Act or support the principles that relate to the planning system
established by this Act; or
(c) any other initiative or policy—
(i) designated by the Planning and Design Code for the purposes of this
subparagraph; or
(ii) prescribed by the regulations for the purposes of this
subparagraph.
(3) A scheme established under this section may include—
(a) an ability or requirement for a person who is proposing to undertake
development (or who has the benefit of an approval under this
Act)—
(i) to make a
contribution to a fund established as part of the scheme; or
(ii) to undertake work
or to achieve some other goal or outcome (on an "in kind" basis);
or
(iii) to proceed under a combination of
subparagraph (i)
,
in order to provide for or address a particular matter identified by the
scheme; and
(b) an ability for a provision of the Planning and Design Code to apply
with a specified variation under the terms of the scheme,
and the scheme will, in so doing, have effect in accordance with its
terms.
(4) If a fund is established as part of a scheme under this
section—
(a) the fund will consist of—
(i) any money received under the terms of the scheme; and
(ii) any income or accretions produced by the investment of money from the
fund; and
(iii) any money advanced or made available by the Treasurer or any other
person or body for the purposes of the fund; and
(b) the fund will be applied towards the purposes of the scheme in
accordance with any directions or approvals of the Treasurer made or given after
consultation with the Minister; and
(c) money that is not immediately required for the purposes of the fund
may be invested in accordance with provisions included in the scheme;
and
(d) the fund must be audited in accordance with provisions included in the
scheme.
(5) An approval of the Minister that relates to a scheme to be established
by a joint planning board or a council may be given on conditions specified by
the Minister.
(6) If a scheme is established under this section, the Minister
must—
(a) prepare a report that sets out information about the scheme;
and
(b) furnish a copy of the report to the ERD Committee; and
(c) publish a copy of the report on the SA planning portal.
(7) A scheme under this section may be wound up—
(a) by the Minister; or
(b) by another designated entity acting with the approval of the
Minister.
(8) The Minister may, on the winding up of a scheme, make a determination
about the use or application of any amount standing to the credit of the fund
established as part of the scheme (and any such determination will have effect
according to its terms).
185—Open
space contribution scheme
(1) Where an
application for a development authorisation provides for the division of land
into more than 20 allotments, and 1 or more allotments is less than
1 hectare in area—
(a) the council in whose area the land is situated; or
(b) if the land is not situated within the area of a council—the
Commission,
may require—
(c) that up to
12.5% in area of the relevant area be vested in the council or the Crown (as the
case requires) to be held as open space; or
(d) that the applicant make the contribution prescribed by the regulations
in accordance with the requirements of this section; or
(e) that land be
vested in the council or the Crown under
paragraph (c)
and that the applicant make a contribution determined in accordance with
subsection (8)
,
according to the determination and specification of the council or the
Commission and, in so acting, the council or the Commission must have regard to
any relevant provision of the Planning and Design Code that designates any land
as open space and, in the case of a council, must not take any action that is at
variance with the Planning and Design Code without the concurrence of the
Commission.
(2) Where an
application under this Part provides for—
(a) the division of land into 20 allotments or less, and 1 or more
allotments is less than 1 hectare in area; or
(b) the division of land under the
Community
Titles Act 1996
or the
Strata
Titles Act 1988
,
then, unless the division is of a kind excluded from the operation of this
section by the regulations—
(c) the Commission may require the applicant to pay to the Commission the
contribution prescribed by the regulations in accordance with the requirements
of this section; or
(d) the Commission
may enter into an agreement with the applicant under which—
(i) certain land described by the relevant plan will be vested (as a
separate allotment) in the council in whose area the land is situated or, where
the land is not situated within the area of a council, in the Crown, to be held
as open space; and
(ii) the applicant will make a contribution under this section.
(3) Where land referred to in
subsection (2)
is in the area of a council, the council must be a party to an agreement
referred to in
subsection (2)(d)
.
(4) Where an
application for a development authorisation provides for the undertaking of
development of a prescribed class in prescribed circumstances (being development
that does not fall within the ambit of
subsection (1)
or
(2)
), the Commission may require—
(a) that an area
not exceeding the prescribed percentage of the total area of the site of the
development be kept as open space or in some other form that allows for active
or passive recreation (as determined by the Commission), with some or all of
this area to be vested in the Crown or, with the concurrence of the council, a
council; or
(b) that the applicant pay the contribution prescribed by the regulations
to the Commission; or
(c) that certain land be kept in the manner contemplated by
paragraph (a)
and that the applicant will make a contribution to the Commission under
this section.
(5) The percentage prescribed under
subsection (4)(a)
must not exceed 12.5%.
(6) The council and the Commission must ensure that there is consistency
between—
(a) a requirement imposed under
subsection (1)
,
(2)
or
(4)
, or an agreement entered into under
subsection (2)
; and
(b) the terms of any development authorisation given under this
Act.
(7) Without limiting the operation of any other provision of this Act, the
regulations prescribing rates of contribution for the purposes of this section
may make different provisions according to designated parts of the State
delineated by zone maps in the Planning and Design Code.
(8) The
contribution that may be required under
subsection (1)(e)
will be determined in accordance with the following formula:
where—
P = the contribution payable
PC = the rate of contribution prescribed by the regulations
for each new allotment or strata lot within the relevant part of the State that
do not exceed 1 hectare in area
OS = the area of land (expressed as a percentage of the
relevant area) to be vested in the council or the Crown as open space
NA = the number of new allotments or strata lots delineated
on the plan that do not exceed 1 hectare in area.
(9) For the purposes of this section, if a plan divides a number of
existing allotments or strata lots into an equal or lesser number of allotments
or strata lots, the allotments or strata lots into which the land is divided
will not be regarded as being new allotments or strata lots, and if a plan
divides a number of existing allotments or strata lots into a greater number of
allotments or strata lots, the number by which the greater number of allotments
or strata lots exceeds the existing number of allotments or strata lots will be
taken to be the number of new allotments or strata lots created by the plan and,
for the purpose of determining the area of the new allotments or strata lots,
the smallest allotment or strata lot delineated on the plan will be regarded as
the first of the new allotments or strata lots, the next to smallest will be
regarded as the second, and so on.
(10) Payment by the applicant under
subsection (1)
must be made—
(a) to the council in whose area the land is situated;
(b) if the land is not situated within the area of a council—to the
Commission.
(11) Money received under this section—
(a) in the case of money received by a council—must be immediately
paid into a fund established for the purposes of this section and applied by the
council for the purpose of acquiring or developing land as open space;
(b) in the case of money received by the Commission—must be paid
into the Planning and Development Fund or, in the case of money received under
subsection (4)
, dealt with in any other manner prescribed by the regulations.
(12) If a council or the Commission is satisfied that the division of land
is being undertaken in stages, this section does not apply to an application for
development authorisation to the extent that an earlier application in respect
of the same development has addressed the requirements of this section in
respect of the area of land as a whole.
(13) In this section, unless the contrary intention
appears—
allotment has the same meaning as in Part 19AB of the
Real
Property Act 1886
and in addition includes a community lot (not being a strata lot) and a
development lot within the meaning of the
Community
Titles Act 1996
but does not include—
(a) a strata lot within the meaning of the
Community
Titles Act 1996
or a unit within the meaning of the
Strata
Titles Act 1988
or common property within the meaning of either of those Acts;
or
(b) a road, street, thoroughfare, reserve or other similar open space
delineated on the relevant plan;
strata lot means a strata lot within the meaning of the
Community
Titles Act 1996
and includes a unit created by a strata plan under the
Strata
Titles Act 1988
;
relevant area means the area of land delineated on the
relevant plan, excluding any allotment that exceeds 1 hectare in area other
than a road, street, thoroughfare, reserve or similar open space delineated on
the relevant plan.
(1) Where an
application for a planning consent provides for the construction of a prescribed
building, the Commission may require that the applicant make the contribution
prescribed by the regulations in accordance with the requirements of this
section.
(2) The rates of contribution prescribed under
subsection (1)
must be consistent with the rates applying under
section 185
.
(3) Without limiting the operation of any other provision of this Act, the
regulations prescribing rates of contribution for the purposes of this section
may make different provisions according to designated parts of the State
delineated by zone maps in the Planning and Design Code.
(4) Payment by the applicant under
subsection (1)
must be made to the Commission.
(5) Money received under this section must be paid into the Planning and
Development Fund.
(6) If a payment is made under this section and the prescribed building is
subsequently divided into allotments so as to create a liability under
section 185
, the liability that would otherwise arise under that section will be
adjusted (or will be extinguished) under a scheme set out in the regulations in
order to provide a credit for the amount paid under this section.
(7) In this section—
apartment means a self-contained apartment, unit or other
residential place that is proposed to be contained in a prescribed building and
that is suitable for use for residential purposes, including on a short-term
basis after applying any principle prescribed by the regulations for the
purposes of this definition, but does not include any premises of a class
excluded by the regulations for the ambit of this definition;
prescribed building means a building—
(a) that is designed to include 2 or more apartments (with or without
other elements); and
(b) that, in the opinion of the Commission, could be divided into 2 or
more allotments (or could be so divided after undertaking minor
alterations).
(1) A council may, with the approval of the Minister, establish a fund (an
urban trees fund) for an area designated by the council (a
designated area).
(2) The establishment of the fund will be effected by notice published in
the Gazette.
(3) A designated area must be defined by reference to an area established
by the Planning and Design Code.
(4) A fund will consist of—
(a) all amounts paid into the fund as a condition of a development
authorisation under this Act; and
(b) any income paid into the fund under
subsection (5)
; and
(c) any amounts paid to the credit of the fund under
subsection (7)
.
(5) Any money in an
urban trees fund that is not immediately required for the purpose of the fund
may be invested by the council and any resultant income must be paid into the
fund.
(6) Money standing
to the credit of an urban trees fund may be applied by the
council—
(a) to maintain or
plant trees in the designated area which are or will (when fully grown)
constitute significant trees under this Act; or
(b) to purchase
land within the designated area in order to maintain or plant trees which are or
will (when fully grown) constitute significant trees under this Act.
(7) The council
must, if it subsequently sells land purchased under
subsection (6)(b)
, pay the proceeds of sale into an urban trees fund maintained by the
council under this section, subject to the following qualifications:
(a) if an urban trees fund is no longer maintained by the council, the
proceeds must be applied for a purpose or purposes consistent with
subsection (6)(a)
or
(b)
;
(b) if money from an urban trees fund only constituted a proportion of the
purchase price of the land (the designated proportion), the money
that is subject to these requirements is the designated proportion of the
proceeds of sale.
(8) Despite the operation of any other provision, if—
(a) a person is required to make a payment in lieu of planting 1 or
more trees; and
(b) the person is a designated person,
then the amount of the payment that would otherwise apply must be
discounted by 66.6%.
(9) In this section—
designated person means a person—
(a) who is an owner and occupier of the land where the relevant tree is
situated; and
(b) who—
(i) is the holder of a current Pensioner Concession Card issued by the
Commonwealth Government and is in receipt of a full Commonwealth pension in
connection with that card; or
(ii) falls within a class of person prescribed by the regulations for the
purposes of this definition.
Part 16—Disputes,
reviews and appeals
Division 1—General
rights of review and appeal
In this Division—
prescribed matter, in relation to an application for a
development authorisation, means—
(a) any assessment, request, decision, direction or act of a relevant
authority under this Act that is relevant to any aspect of the determination of
the application; or
(b) a decision to refuse to grant the authorisation; or
(c) the imposition of conditions in relation to the authorisation;
or
(d) subject to any exclusion prescribed by the regulations, any other
assessment, request, decision, direction or act of a relevant authority under
this Act in relation to the authorisation.
189—Rights
of review and appeal
(1) The following
applications or proceedings may be made or brought under this
Division:
(a) the owner of any land constituting a place that has been designated in
the Planning and Design Code as a place of local heritage value may appeal to
the Court against the decision to make the designation;
(b) a person who has
applied for a development authorisation may, in respect of a prescribed
matter—
(i) in a case where
the application was made to an assessment manager appointed by an assessment
panel acting as a relevant authority—
(A) apply to the
assessment panel for a review of a prescribed matter; or
(B) appeal to the Court against a prescribed matter; or
(ii) in any other case—appeal to the Court against a prescribed
matter;
(c) a person who, after making an application under
paragraph (b)(i)(A)
, is dissatisfied with the outcome of the review, may appeal to the Court
against a decision of the assessment panel on the review;
(d) a person who is entitled to be given a notice of a decision under
section 103(6)
in respect of development classified as restricted development by the
Planning and Design Code may appeal to the Court against the decision;
(e) a person who
has applied to a council for a certificate of occupancy or an approval to occupy
a building on a temporary basis may appeal to the Court against a refusal by the
council to grant the certificate or to give the approval;
(f) a person who is
a party to a dispute relating to—
(i) the effect of the Building Rules in specific circumstances;
or
(ii) the manner in which the provisions of the Building Rules are, or
ought to be, carried into effect; or
(iii) whether or not an application for building consent in relation to a
development that is at variance with the Building Rules should be granted in a
particular case; or
(iv) whether the requirements of the Building Rules in any matter relating
to building work have been satisfied in a particular case, or what is necessary
for the satisfaction of those requirements; or
(v) the construction of a party wall or the proportion or amount of the
expense to be borne by the respective owners of premises separated by a party
wall; or
(vi) any other prescribed matter,
may apply to the Court for determination of the dispute;
(g) a person who can
demonstrate an interest in a matter that is relevant to the determination of an
application for a development authorisation by a relevant authority under this
Act by virtue of being an owner or occupier of land constituting the site of the
proposed development, or an owner or occupier of land constituting the site of
the proposed development, or an owner of occupier of adjacent land, may apply to
the Court for a review of the matter with respect to a decision under this Act
as to the nature of the development under
Part 7
Division 2 Subdivision 1
.
(h) a person who is authorised to bring proceedings before the Court by
the regulations.
(2) If—
(a) an application that involves a dispute relating to a matter referred
to in
subsection (1)(e)
or
(f)
(and no other matter) is made to the Court; or
(b) an appeal is commenced before the Court in any case prescribed by the
regulations for the purposes of this paragraph,
the matter must, in accordance with the Rules of the Court, be referred to
a commissioner or commissioners of the Court acting as a building referee or
building referees under
section 193
.
(3) A right of review under
subsection (1)(g)
does not limit or restrict the ability of an applicant for the relevant
development authorisation to institute an appeal under
subsection (1)(b)
.
(4)
Subsection (1)
does not—
(a) derogate from any other provision of this Act that confers a right to
apply to the Court in specified or prescribed circumstances;
(b) derogate from any other provision of this Act that prevents or
restricts a right to apply to the Court in specified or prescribed
circumstances.
(5) If an application relates to the decision, direction, act, consent,
approval, order or determination of a person or body acting in pursuance of
delegated powers, the respondent is the principal and not the
delegate.
190—Application
to assessment panel
(1) An application to
an assessment panel for review of a prescribed matter under this Division in a
case where an assessment manager acted as a relevant authority must be made in
the prescribed manner and form and must be made within 1 month after the
applicant receives notice of the decision constituting the prescribed matter
unless the assessment panel, in its discretion, allows an extension of
time.
(2) On an application
under
subsection (1)
—
(a) the assessment panel may adopt such procedure as the assessment panel
thinks fit; and
(b) the assessment panel is not bound by the rules of evidence and may
inform itself as it thinks fit.
(3) Without limiting
subsection (2)
—
(a) the assessment
manager must, on a request made by the assessment panel, furnish to the
assessment panel any application, documents, written submissions, reports,
plans, specifications or other documents lodged with, or received by, the
assessment manager in relation to the matter, and any other relevant material
requested by the assessment panel; and
(b) the assessment
manager must, on a request made by the assessment panel, furnish a report on any
aspect of the subject-matter of the review; and
(c) the assessment panel may examine anything submitted under
paragraph (a)
and consider any report provided under
paragraph (b)
and draw any conclusions of fact it considers proper.
(4) An assessment panel may, on a review under this
Division—
(a) affirm the decision being reviewed; or
(b) vary the decision being reviewed; or
(c) set aside the decision being reviewed and substitute its own
decision,
and any decision of an assessment panel will then have effect according to
its terms.
(1) An application to
the Court must be made in a manner and form determined by the Court, setting out
the grounds of the application, and, unless otherwise specifically provided
under another provision of this Act, must be made within 2 months after the
applicant receives notice of the decision to which the application relates
unless the Court, in its discretion, allows an extension of time.
(2) Subject to
subsection (3)
, an application under
subsection (1)
must be referred in the first instance to a conference under
section 16 of the
Environment,
Resources and Development Court Act 1993
(and the provisions of that Act will then apply in relation to the
application).
(3)
Subsection (2)
does not apply—
(a) in a case where the matter is referred to a building referee or
building referees under
section 193
; or
(b) in any case, or case of a kind, prescribed by the
regulations.
192—Powers
of Court in determining any matter
(1) The Court may, on hearing any proceedings under this
Act—
(a) confirm, vary or reverse any decision, assessment, consent, approval,
direction, act, order or determination to which the proceedings
relate;
(b) affirm, vary or quash any order, notice or other authority that has
been issued;
(c) order or direct a person or body to take such action as the Court
thinks fit, or to refrain (either temporarily or permanently) from such action
or activity as the Court thinks fit;
(d) if it appears to the Court to be appropriate to the subject of the
proceedings, order—
(i) that a building (or any part of a building) be altered, reinstated or
rectified in a manner specified by the Court;
(ii) that a party to the dispute remove or demolish a building (or any
part of a building);
(e) if appropriate in the circumstances of the proceedings—make any
determination or declaration, or grant any other remedy or relief, as the Court
thinks fit, including so as to grant a development authorisation;
(f) make any consequential or ancillary order or direction, or impose any
condition, that the Court considers necessary or expedient.
(2) The following provisions apply in connection with the exercise of the
Court's jurisdiction in any proceedings under this Act:
(a) subject to
paragraph (b)
, the Court should only seek to deal with and resolve those issues in
dispute between the parties and should not, unless the Court considers it to be
necessary or appropriate to do so, consider any aspect of the decision,
assessment, consent, approval, direction, act, order or determination that is
not being challenged;
(i) a person who has applied for a development authorisation is appealing
against a refusal to grant the authorisation; or
(ii) a third party is appealing against a decision to grant a development
authorisation,
the Court may (if the Court thinks fit) proceed to consider the matter
de novo (adopting such processes and procedures as it thinks fit and
taking into account any material that was before the relevant authority when it
refused to grant the authorisation and such other evidence or material as the
Court thinks fit);
(c) the Court may, in dealing with an application from a person to be
joined as a party to the proceedings (other than the Crown, a relevant authority
applying under
section 115
, or a person who was entitled to be given notice of a decision in
prescribed circumstances (if relevant)), determine not to grant the
application—
(i) on the ground that the Court is not satisfied that the person has a
special interest in the subject-matter of the application; or
(ii) on the ground that, whatever the interest of the person may be, the
Court is not satisfied that the interests of justice require that the person be
joined as a party; or
(iii) on any other ground determined to be appropriate by the
Court.
193—Special
provision relating to building referees
(1) The commissioner or commissioners to whom a matter is referred under
section 189
will determine the matter as a building referee or as building referees,
who will, subject to the Rules of the Court, for the purposes of this provision,
have the powers of arbitrators under the
Commercial
Arbitration Act 2011
.
(2) In addition to the other powers that a commissioner may exercise as a
member of the Court under this Act, the commissioner or commissioners
may—
(a) refer any question of law to a Judge of the Court for
determination;
(b) require a party to furnish—
(i) particulars of his or her case;
(ii) documentary or other material relevant to the determination of the
matter;
(iii) such other information as the commissioner thinks fit;
(c) give summary judgment (with costs) against any party who obstructs or
delays the proceedings or who fails to attend or participate in the
proceedings;
(d) make a declaration as to the effect of the Building Rules in the
particular case (which declaration will have effect according to its
terms);
(e) order that building work be carried out in a specified manner (being a
manner that accords with the Building Rules or, if the commissioner or
commissioners think fit, is at variance with the Building Rules but effectively
attains the objects of this Act);
(f) settle any dispute relating to a party wall.
(3) No appeal lies from a decision of a commissioner under this section on
a question of fact.
Division 2—Initiation
of proceedings to gain a commercial competitive advantage
(1) In this Division—
commercial competitive interest—see
subsection (2)
;
relevant proceedings means any proceedings before a court
arising under or in connection with the operation of this Act including
proceedings for judicial review, but not including criminal
proceedings.
(2) For the
purposes of this Division, if the business of a person, or the business of an
associate of a person (other than the proponent of the development), might be
adversely affected by a particular development on account of competition in the
same market, then the person will be taken to have a commercial competitive
interest in any relevant proceedings that are related to that
development.
(3) For the purposes of this Division, the circumstances in which
proceedings are related to a development include a situation where proceedings
constitute a challenge to the Planning and Design Code, or to the amendment of
the Planning and Design Code, that affects a development.
(4) The regulations may provide that this Division does not apply in a
circumstance or situation (or circumstance or situation of a prescribed class)
specified by the regulations.
(1) If—
(a) a person—
(i) commences any relevant proceedings; or
(ii) becomes a party to any relevant proceedings; and
(b) the person has a commercial competitive interest in the
proceedings,
then the person must disclose the commercial competitive
interest.
(2) If—
(i) commences any relevant proceedings; or
(ii) becomes a party to any relevant proceedings; and
(b) the person
receives, in connection with those proceedings, direct or indirect financial
assistance from a person who has a commercial competitive interest in the
proceedings,
then both the person referred to in
paragraph (a)
and the person who provided the financial assistance referred to in
paragraph (b)
must disclose the commercial competitive interest.
(3) A disclosure must be made to the Registrar of the relevant court and
to the other parties to the relevant proceedings in accordance with any
requirements prescribed by the regulations.
(4) A person who fails to make a disclosure in accordance with the
requirements of this section is guilty of an offence.
Maximum penalty: $20 000.
196—Right
of action in certain circumstances
(a) a person—
(i) who is a party to the relevant proceedings related to a development;
or
(ii) who provides direct or indirect financial assistance to a party to
any relevant proceedings related to a development,
has a commercial competitive interest in the proceedings, or has an
associate who has a commercial competitive interest in the proceedings;
and
(b) the outcome of the proceedings (including after taking into account
any appeal) is that the development, or a development in substantially the same
form, may proceed,
then the proponent of the development is entitled to recover from the
person (the defendant) and, if relevant, from any associate of the
defendant, as a debt, an amount equal to the amount of any loss (including
economic loss) that can be reasonably assessed as having been suffered by the
proponent as a result of delays to the development on account of the proceedings
if the court is satisfied that the defendant's sole or predominant purpose in
pursuing the proceedings, or for providing financial assistance (as the case may
be) was to delay or prevent the development in order to obtain commercial
benefit for the defendant or an associate of the defendant.
(2) A court before which proceedings are brought under
subsection (1)
may, if it considers that it is appropriate to do so, reduce any amount
that would otherwise be recoverable under that subsection to take into
account—
(a) any delay in the relevant proceedings reasonably attributable to the
actions of the proponent of the development or of some other party (other than
the defendant, an associate of the defendant or a person who has received direct
or indirect financial assistance from the defendant in connection with those
proceedings); or
(b) any other matter that it considers relevant in the circumstances of
the particular case.
(3) Without in any way limiting the manner in which the purpose of a
person may be established for the purposes of
subsection (1)
, a person may be taken to have pursued proceedings, or to have provided
financial assistance to a party to proceedings (as the case may be) for a
purpose referred to in
subsection (1)
notwithstanding that, after all the evidence has been considered, the
existence of that purpose is ascertainable only by inference from the conduct of
the person or of any other person or from other relevant
circumstances.
197—Appointment
of authorised officers
(1) The Minister or a council—
(a) may appoint a person to be an authorised officer for the purposes of
this Act; and
(b) must appoint a person who holds the qualifications prescribed by the
regulations to be an authorised officer for the purposes of this Act if required
to do so by the regulations.
(2) An appointment of an authorised officer may be subject to
conditions.
(3) Each authorised officer must be issued an identity
card—
(a) containing a photograph of the authorised officer; and
(b) stating any conditions of appointment limiting the authorised
officer's appointment.
(4) An authorised officer must, on request, produce the identity card for
inspection before exercising the powers of an authorised officer under this Act
in relation to any person.
(5) The Minister or a council may, at any time, revoke an appointment
which the Minister or the council has made, or vary or revoke a condition of
such an appointment or impose a further such condition.
198—Powers
of authorised officers to inspect and obtain information
(1) An authorised
officer may—
(a) enter and inspect any land or building—
(i) where the authorised officer reasonably suspects that a provision of
this Act is being, or has been breached; or
(ii) in the case of an authorised officer who holds prescribed
qualifications—for the purpose of inspecting any building work;
or
(iii) for the purposes of determining that the land or building is safe;
or
(iv) for any other reasonable purpose connected with the administration or
operation of this Act;
(b) subject to
subsection (2)
, where reasonably necessary—
(i) break into or open any part of, or anything in or on, the land or
building; or
(ii) pull down or lay open any building or building work;
(c) require any person to produce any documents (which may include a
written record reproducing in an understandable form information stored by
computer, microfilm or other process) as reasonably required in connection with
the administration or enforcement of this Act;
(d) examine, copy or take extracts from any documents or information so
produced or require a person to provide a copy of any such document or
information;
(e) carry out tests, make measurements or take photographs, films or video
recordings as reasonably necessary in connection with the administration or
enforcement of this Act;
(f) require a person whom the authorised officer reasonably suspects to
have committed, or to be committing or about to commit, any breach of this Act
to state the person's full name and usual place of residence and to produce
evidence of the person's identity;
(g) require a person who the authorised officer reasonably suspects has
knowledge of matters in respect of which information is reasonably required for
the administration or enforcement of this Act to answer questions in relation to
those matters;
(h) give any directions reasonably required in connection with the
exercise of a power conferred by any of the above paragraphs or otherwise in
connection with the administration or enforcement of this Act.
(2) An authorised
officer may only exercise the power conferred by
subsection (1)(b)
on the authority of a warrant issued by a magistrate unless the authorised
officer believes, on reasonable grounds, that the circumstances require
immediate action to be taken.
(3) A magistrate must not issue a warrant under
subsection (2)
unless satisfied, on information given on oath—
(a) that there are reasonable grounds to suspect that a provision of this
Act has been, is being, or is about to be, breached; or
(b) that the warrant is otherwise reasonably required in the
circumstances.
(4) In the exercise of powers under this Act an authorised officer may be
assisted by such persons as may appear to the authorised officer to be necessary
or desirable in the circumstances.
(5) An occupier of a building must give to an authorised officer or a
person assisting an authorised officer such assistance as is reasonably required
for the effective exercise of the powers conferred by this section.
Maximum penalty: $10 000.
(6) Subject to
subsection (7)
, a person who—
(a) without reasonable excuse, hinders or obstructs an authorised officer,
or a person assisting an authorised officer, in the exercise of powers under
this Act; or
(b) uses abusive, threatening or insulting language to an authorised
officer, or a person assisting an authorised officer; or
(c) without reasonable excuse, fails to obey a requirement or direction of
an authorised officer under this Act; or
(d) without reasonable excuse, fails to answer, to the best of the
person's knowledge, information and belief, a question put by an authorised
officer; or
(e) falsely represents, by words or conduct, that he or she is an
authorised officer,
is guilty of an offence.
Maximum penalty: $10 000.
(7) It is not a
reasonable excuse for a person to fail to answer a question or to produce, or
provide a copy of, a document or information as required under this section that
to do so might tend to incriminate the person or make the person liable to a
penalty.
(8) If compliance by a natural person with a requirement under this
section might tend to incriminate the person or make the person liable to a
penalty, then—
(a) in the case of a person who is required to produce, or provide a copy
of, a document or information—the fact of production, or provision of a
copy of, the document or the information (as distinct from the contents of the
document or the information); or
(b) in any other case—the answer given in compliance with the
requirement,
is not admissible in evidence against the person in proceedings for an
offence or for the imposition of a penalty (other than proceedings in respect of
the making of a false or misleading statement).
(1) In this Division—
designated authority means—
(a) the Commission; or
(b) a council; or
(c) the South Australian Heritage Council; or
(d) a person or body brought within the ambit of this definition by the
regulations.
(2) In this Division, a reference to a breach of this Act is a reference
to—
(a) a contravention, or threatened contravention, of this Act, other than,
in relation to the Crown, or an agency, instrumentality, officer or employee of
the Crown, the Building Rules; or
(b) a contravention, or threatened contravention, of an agreement under
Part 14
.
(1) If a designated
authority has reason to believe on reasonable grounds that a person has breached
this Act or the repealed Act, the designated authority may do such of the
following as the designated authority considers necessary or appropriate in the
circumstances:
(a) direct a person to refrain, either for a specified period or until
further notice, from the act, or course of action, that constitutes the
breach;
(b) direct a person
to make good any breach in a manner, and within a period, specified by the
relevant authority;
(c) take such urgent action as is required because of any situation
resulting from the breach.
(2) A direction
under
subsection (1)
must be given by notice in writing unless the designated authority
considers that the direction is urgently required, in which case it may be given
orally by an authorised officer.
(3) If a direction
is given orally under
subsection (2)
, the authorised officer who gave the direction must confirm the direction
by notice in writing by 5 pm on the next business day.
(4) A written notice under
subsection (2)
or
(3)
must set out any appeal rights that the person may have under this
Act.
(5) If a person fails to comply with a direction under
subsection (1)(b)
within the time specified in the notice, the designated authority may
cause the necessary action to be taken.
(6) The reasonable costs and expenses incurred by a designated authority
(or any person acting on behalf of the designated authority) under this section
may be recovered by the designated authority, as a debt, due from the person
whose failure gave rise to the action.
(7) If an amount is recoverable from a person by a designated authority
under this section—
(a) the designated authority may, by notice in writing to the person, fix
a period, being not less than 28 days from the date of the notice, within
which the amount must be paid by the person, and, if the amount is not paid by
the person within that period, the person is liable to pay interest charged at
the prescribed rate per annum on the amount unpaid; and
(b) the amount together with any interest charged so payable is until paid
a charge in favour of the designated authority on any land owned by the
person.
(8) An appeal against a notice under this section must be commenced within
14 days after the direction is given to the appellant unless the Court
allows a longer time for the commencement of the appeal.
(9) Subject to any order of the Court to the contrary, the operation of a
direction is not suspended pending the determination of an appeal.
(10) In an appeal against a notice issued by a designated authority under
this section, the Court may make such orders as to costs as it thinks
fit.
(11) A person who contravenes or fails to comply with a direction under
this section is guilty of an offence.
Maximum penalty: $20 000.
Default penalty: $500.
(12) A direction cannot be given under this section if it appears that the
breach occurred more than 12 months previously.
(1) Any person may apply to the Court for an order to remedy or restrain a
breach of this Act or the repealed Act (whether or not any right of that person
has been or may be infringed by or as a consequence of that breach).
(2) Proceedings under this section may be brought in a representative
capacity (but, if so, the consent of all persons on whose behalf the proceedings
are brought must be obtained).
(3) If proceedings under this section are brought by a person other than a
designated authority, the applicant must serve a copy of the application on the
designated authority within 3 days after filing the application with the
Court.
(4) An application may be made without notice to any person and, if the
Court is satisfied on the application that the respondent has a case to answer,
it may grant permission to the applicant to serve a summons requiring the
respondent to appear before the Court to show cause why an order should not be
made under this section.
(5) An application
under this section must, in the first instance, be referred to a conference
under section 16 of the
Environment,
Resources and Development Court Act 1993
.
(a) after hearing—
(i) the applicant and the respondent; and
(ii) any other person who has, in the opinion of the Court, a proper
interest in the subject-matter of the proceedings and desires to be heard in the
proceedings,
the Court is satisfied, on the balance of probabilities, that the
respondent to the application has breached this Act or the repealed Act;
or
(b) the respondent fails to appear in response to the summons or, having
appeared, does not avail himself or herself of an opportunity to be
heard,
the Court may, by order, exercise any of the following powers:
(c) require the respondent to refrain, either temporarily or permanently,
from the act, or course of action, that constitutes the breach;
(d) require the
respondent to make good the breach in a manner, and within a period, specified
by the Court, or to take such other action as may appear appropriate to the
Court;
(e) cancel or vary any development authorisation;
(f) require the respondent to pay to any person who has suffered loss or
damage as a result of the breach, or incurred costs or expenses as a result of
the breach, compensation for the loss or damage or an amount for or towards
those costs or expenses;
(g) if the Court
considers it appropriate to do so, require the respondent to pay an amount,
determined by the Court, in the nature of exemplary damages—
(i) if the applicant is a council and the Crown has not become a party to
the proceedings—to the council;
(ii) in any other case—into the General Revenue of the
State.
(7) In assessing damages under
subsection (6)(g)
, the Court must have regard to—
(a) any detriment to the public interest resulting from the breach;
and
(b) any financial or other benefit that the respondent sought to gain by
committing the breach; and
(c) any other matter it considers relevant.
(8) The power conferred under
subsection (6)(g)
can only be exercised by a Judge of the Court.
(9) A designated authority, and any person with a legal or equitable
interest in land to which an application under this section relates, is entitled
to appear, before a final order is made, and be heard in proceedings based on
the application.
(10) If, on an application under this section or before the determination
of the proceedings commenced by the application, the Court is satisfied that, in
order to preserve the rights or interests of parties to the proceedings or for
any other reason, it is desirable to make an interim order under this section,
the Court may make such an order.
(11) An interim order—
(a) may be made on an application without notice to any person;
and
(b) may be made whether or not the proceedings have been referred to a
conference under
subsection (5)
; and
(c) will be made subject to such conditions as the Court thinks fit;
and
(d) will not operate after the proceedings in which it is made are finally
determined.
(12) If the Court
makes an order under
subsection (6)(d)
and the respondent fails to comply with the order within the period
specified by the Court, a designated authority may cause any work contemplated
by the order to be carried out, and may recover the costs of that work, as a
debt, from the respondent.
(13) If an amount is recoverable from a person by a designated authority
under
subsection (12)
—
(a) the designated authority may, by notice in writing to the person, fix
a period, being not less than 28 days from the date of the notice, within which
the amount must be paid by the person, and, if the amount is not paid by the
person within that period, the person is liable to pay interest charged at the
prescribed rate per annum on the amount unpaid; and
(b) the amount together with any interest charged so payable is until paid
a charge in favour of the designated authority on any land owned by the
person.
(14) The Court may, if it thinks fit, adjourn proceedings under this
section in order to permit the respondent to make an application for a
development authorisation that should have been but was not made, or to remedy
any other default.
(15) The Court may order an applicant in proceedings under this
section—
(a) to provide security for the payment of costs that may be awarded
against the applicant if the application is subsequently dismissed;
(b) to give an undertaking as to the payment of any amount that may be
awarded against the applicant under
subsection (16)
.
(16) If on an
application under this section the Court is satisfied—
(a) that the respondent has not breached this Act or the repealed Act;
and
(b) that the respondent has suffered loss or damage as a result of the
actions of the applicant; and
(c) that in the circumstances it is appropriate to make an order under
this provision,
the Court may, on the application of the respondent (and in addition to any
order as to costs), require the applicant to pay to the respondent an amount,
determined by the Court, to compensate the respondent for the loss or damage
which the respondent has suffered.
(17) The Court may, if it considers it appropriate to do so, either on its
own initiative or on the application of a party, vary or revoke an order
previously made under this section.
(18) The Court may make such orders in relation to costs of proceedings
under this section as it thinks fit.
(19) Proceedings under this section may be commenced at any time within
3 years after the date of the alleged breach or, with the authorisation of
the Attorney-General, at any later time.
(20) An apparently genuine document purporting to be under the hand of the
Attorney-General and to authorise the commencement of proceedings under this
section will be accepted in any legal proceedings, in the absence of proof to
the contrary, as proof of the authorisation.
Division 2—General
offences and provisions relating to offences
Subdivision 1—General
offences
(1) A person must not undertake development contrary to this
Act.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(2) A person must not undertake development contrary to a development
authorisation under this Act.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
(3) A person who has the benefit of a development must ensure that the
development is used, maintained and operated in accordance with—
(a) any development authorisation under this Act; and
(b) any plans, drawings, specifications or other documents submitted to a
relevant authority for the purposes of this Act that are relevant to any such
approval.
Maximum penalty: $60 000.
(4) A person must not contravene, or fail to comply with, a condition
imposed under this Act in relation to a development authorisation.
Maximum penalty: $120 000.
Additional penalty.
Default penalty: $500.
203—Offences
relating specifically to building work
(1) A person must
not perform building work, or cause it to be performed, except in accordance
with technical details, particulars, plans, drawings and specifications approved
in accordance with this Act.
Maximum penalty: $60 000.
Default penalty: $200.
(2) A person must,
in performing any building work, comply with the Building Rules (unless modified
under this Act), and any other requirements imposed by or under this Act in
respect of that work.
Maximum penalty: $60 000.
Default penalty: $200.
(a) any item or materials incorporated into any building through the
performance of any building work do not comply with the Building Rules (as
modified under this Act and subject to any variation that may be lawfully
allowed); and
(b) the failure to comply is attributable (wholly or in part) to an act or
omission of a person who designed, manufactured, supplied or installed the item
or materials, being an act or omission occurring where it was reasonably
foreseeable that the item or materials would be required to comply with the
Building Rules and where it was reasonable, in the circumstances, to rely on the
advice, skills or expertise of that person,
then that person will be guilty of an offence.
Maximum penalty: $60 000.
(4) The fact that a person may have (or has) committed an offence against
subsection (3)
does not affect the requirements imposed on a person by
subsections (1)
and
(2)
.
(5) In so far as any charge for an offence against a preceding subsection
relates to a failure to comply with the Building Rules (including the Building
Rules as modified under this Act), it is a defence to prove that the failure to
comply was only of a minor nature and had no adverse effect on the structural
soundness or safety of the building in respect of which the relevant building
work was performed.
(6) In this section—
item includes any component, fitting, connection, mounting or
accessory.
204—False
or misleading information
A person must not, in furnishing information under this Act, make a
statement that is false or misleading in a material particular (whether by
reason of the inclusion or omission of any particular).
Maximum penalty: $20 000.
Subdivision 2—General
provisions relating to offences
205—Criminal
jurisdiction of Court
The offences constituted by this Act lie within the criminal jurisdiction
of the Court (and, for that purpose, all offences under this Act are classified
as summary offences).
(1) Proceedings for an offence against this Act may be commenced by (and
only commenced by)—
(a) the Minister; or
(b) the Director of Public Prosecutions; or
(c) the Chief Executive; or
(d) the Commission; or
(e) the Commissioner for Consumer Affairs; or
(f) an authorised officer; or
(g) a council; or
(h) the South Australian Heritage Council; or
(i) a person acting with the authorisation in writing to the
Attorney-General.
(2) A prosecution for an offence against this Act may be commenced at any
time within 3 years after the date of the alleged commission of the offence
or, with the authorisation of the Attorney-General, at any later time within
10 years after the date of the alleged commission of the offence.
(3) An apparently genuine document purporting to be signed by the
Attorney-General and to authorise the commencement of proceedings for an offence
against this Act will be accepted in any legal proceedings, in the absence of
proof to the contrary, as proof of the authorisation.
207—Offences
by bodies corporate—responsibility of officers
(1) If a body
corporate is guilty of a prescribed offence, each director and the chief
executive officer of the body corporate are guilty of an offence and liable to
the same penalty as is prescribed for the principal offence when committed by a
natural person unless the director or the chief executive officer (as the case
may be) proves that he or she could not by the exercise of due diligence have
prevented the commission of the offence.
(2) If a body
corporate is guilty of any other offence against this Act (other than an offence
against the regulations), each director and the chief executive officer of the
body corporate are guilty of an offence and liable to the same penalty as is
prescribed for the principal offence when committed by a natural person if the
prosecution proves that—
(a) the director or chief executive officer (as the case may be) knew, or
ought reasonably to have known, that there was a significant risk that such an
offence would be committed; and
(b) the director or chief executive officer (as the case may be) was in a
position to influence the conduct of the body corporate in relation to the
commission of such an offence; and
(c) the director or chief executive officer (as the case may be) failed to
exercise due diligence to prevent the commission of the offence.
(3)
Subsection (2)
does not apply if the principal offence is an offence against a section
prescribed by the regulations for the purposes of this subsection.
(4) The regulations may make provision in relation to the criminal
liability of a director or the chief executive of a body corporate that is
guilty of an offence against the regulations.
208—Penalties
for bodies corporate
The maximum penalty that may be imposed for an offence against this Act
that is committed by a body corporate is 5 times the maximum penalty that
the court could, but for this section, impose as a penalty for an
offence.
(1) If, in proceedings for an offence against this Act, the court finds
that the defendant has contravened, or failed to comply with, this Act, the
court may, in addition to any penalty that it may impose, do 1 or more of the
following:
(a) order the person to take specified action to make good the
contravention or default in a manner, and within a period, specified by the
court (including an order that the person make application for a development
authorisation that should have been, but has not been made, under this
Act);
(b) order the person to pay to a relevant authority costs or expenses
incurred by the authority in taking action on account of any situation that
resulted from that contravention or failure;
(c) cancel any development authorisation;
(d) order the person to pay to any person who has suffered loss or damage
as a result of the contravention or failure, or incurred costs or expenses as a
result of the contravention or failure, compensation for the loss or damage or
an amount for or towards those costs or expenses.
(2) A person must not, without reasonable excuse, fail to comply with an
order under this section.
Maximum penalty: $20 000.
(1) If a person is
found guilty of an offence against this Act, the court may make an order (an
adverse publicity order) in relation to the person (the
offender) requiring the offender—
(a) to take either or both of the following actions within the period
specified in the order:
(i) to publicise, in the way specified by the order, the offence, its
consequences, the penalty imposed and any other related matter;
(ii) to notify a specified person or specified class of person, in the way
specified in the order, of the offence, its consequences, the penalty imposed
and any other related matter; and
(b) to give to the
Commission, within 7 days after the end of the period specified in the
order, evidence that the action or actions were taken by the offender in
accordance with the order.
(2) The court may make an adverse publicity order on its own initiative or
on the application of the person prosecuting the offence.
(3) If the offender
fails to give evidence to the Commission in accordance with
subsection (1)(b)
, the Commission, or a person authorised in writing by the Commission, may
take the action or actions specified in the order.
(a) the offender gives evidence to the Commission in accordance with
subsection (1)(b)
; and
(b) despite the evidence, the Commission is not satisfied that the
offender has taken the action or actions specified in the order in accordance
with the order,
the Commission may apply to the court for an order authorising the
Commission, or a person authorised in writing by the Commission, to take the
action or actions.
(5) If the Commission, or a person authorised in writing by the
Commission, takes an action or actions in accordance with
subsection (3)
or an order under
subsection (4)
, the Commission is entitled to recover from the offender an amount in
relation to the reasonable expenses of taking the action or actions, as a debt,
due to the Commission.
211—Proceedings
commenced by councils
If—
(a) proceedings for an offence against this Act brought within the ambit
of this section by the regulations are commenced by a council; and
(b) a fine is imposed by a court for the offence; and
(c) the fine is paid to a clerk of the court,
the clerk must pay the amount of the fine to the council.
(1) Subject to this section, if the Commission is satisfied that a person
has committed an offence by contravening a provision of this Act, the Commission
may, as an alternative to criminal proceedings, recover, by negotiation or by
application to the Court, an amount as a civil penalty in respect of the
contravention.
(2) The Commission may not recover an amount under this section in respect
of a contravention if the relevant offence requires proof of intention or some
other state of mind, and must, in respect of any other contravention, determine
whether to initiate proceedings for an offence or take action under this
section, having regard to the seriousness of the contravention, the previous
record of the offender and any other relevant factors.
(3) The Commission may not make an application to the Court under this
section to recover an amount from a person as a civil penalty in respect of a
contravention—
(a) unless the Commission has served on the person a notice in the
prescribed form advising the person that the person may, by written notice to
the Commission, elect to be prosecuted for the contravention and the person has
been allowed not less than 21 days after service of the Commission's notice to
make such an election; or
(b) if the person serves written notice on the Commission, before the
making of such an application, that the person elects to be prosecuted for the
contravention.
(4) The maximum amount that the Commission may recover by negotiation as a
civil penalty in respect of a contravention is—
(a) the amount specified by this Act as the criminal penalty in relation
to that contravention; or
(b) $120 000,
whichever is the lesser.
(5) If, on an application by the Commission, the Court is satisfied on the
balance of probabilities that a person has contravened a provision of this Act,
the Court may order the person to pay to the Commission an amount as a civil
penalty (but not exceeding the amount specified by this Act as the criminal
penalty in relation to that contravention).
(6) In determining the amount to be paid by a person as a civil penalty,
the Court must have regard to—
(a) the nature and extent of the contravention; and
(b) any detriment to the public interest resulting from the contravention;
and
(c) any financial saving or other benefit that the person stood to gain by
committing the contravention; and
(d) whether the person has previously been found, in proceedings under
this Act, to have engaged in any similar conduct; and
(e) any other matter it considers relevant.
(7) The jurisdiction conferred by this section is to be part of the civil
jurisdiction of the Court.
(8) If conduct of a person constitutes a contravention of 2 or more
provisions of this Act, an amount may be recovered from the person under this
section in relation to the contravention of any 1 or more of those provisions
(provided that the person is not liable to pay more than 1 amount as a civil
penalty in respect of the same conduct).
(9) Proceedings for
an order under this section that a person pay an amount as a civil penalty in
relation to a contravention of this Act, or for enforcement of such an order,
are stayed if criminal proceedings are started by the Commission, or have
already been started, against the person for an offence constituted by conduct
that is substantially the same as the conduct alleged to constitute the
contravention.
(10) Furthermore—
(a) proceedings referred to in
subsection (9)
may only be resumed if the criminal proceedings do not result in a formal
finding of guilt being made against the person; and
(b) if proceedings for an order under this section that a person pay an
amount as a civil penalty in relation to a contravention of this Act are
commenced by the Commission, criminal proceedings against the person for an
offence constituted by conduct that is substantially the same as the conduct
alleged to constitute the contravention cannot be commenced without the
authorisation of the Attorney-General.
(11) Evidence of
information given or evidence of the production of documents by a person is not
admissible in criminal proceedings against the person if—
(a) the person gave the evidence or produced the documents in the course
of negotiations or proceedings under this section for the recovery of an amount
as a civil penalty in relation to a contravention of this Act; and
(b) the conduct alleged to constitute the offence is substantially the
same as the conduct that was alleged to constitute the contravention.
(12) However,
subsection (11)
does not apply to criminal proceedings in respect of the making of a false
or misleading statement.
(13) Proceedings for an order under this section may be commenced at any
time within 3 years after the date of the alleged contravention or, with
the authorisation of the Attorney-General, at any later time within
10 years after the date of the alleged contravention.
(14) An apparently genuine document purporting to be signed by the
Attorney-General and to authorise the commencement of proceedings under this
section will be accepted in any legal proceedings, in the absence of proof to
the contrary, as proof of the authorisation.
(15) The Court may, in any proceedings under this section, make such
orders in relation to the costs of the proceedings as it thinks just and
reasonable.
(16) The Commission must ensure that information about the commencement of
proceedings under this section is published on the SA planning
portal.
213—Imputation
of conduct or state of mind of officer, employee etc
(1) For the
purposes of proceedings for an offence against this Act or proceedings for the
payment of an amount as a civil penalty in respect of an alleged contravention
of this Act—
(a) the conduct and state of mind of an officer, employee or agent of a
body corporate acting within the scope of his or her actual, usual or ostensible
authority will be imputed to the body corporate;
(b) the conduct and state of mind of an employee or agent of a natural
person acting within the scope of his or her actual, usual or ostensible
authority will be imputed to that person.
(2) If—
(a) a natural person is convicted of an offence against this Act;
and
(b) the person would not have been convicted of the offence but for the
operation of
subsection (1)
,
the person is not liable to be punished by imprisonment for the
offence.
(3) For the purposes of this section, a reference to conduct
or acting includes a reference to failure to
act.
214—Statement
of officer evidence against body corporate
In proceedings for an offence against this Act by a body corporate or
proceedings against a body corporate for the payment of an amount as a civil
penalty in respect of an alleged contravention of this Act, a statement made by
an officer of the body corporate is admissible as evidence against the body
corporate.
(1) If in any
proceedings under this Act the court finds that a person has contravened this
Act by undertaking a tree-damaging activity, the court may, in addition to any
penalty that it may impose, by order, direct a specified person to do 1 or
more of the following:
(a) to establish a tree or trees of a kind specified by the court in a
place or places specified by the court;
(b) to remove any buildings, works or vegetation that have been erected,
undertaken or planted at or near the place where the regulated tree was situated
since the breach occurred;
(c) to nurture, protect and maintain any tree or trees until they are
fully established or for such period as may be specified by the court, or to
make a payment or payments towards the maintenance of any tree or
trees.
(2) The court may
make any ancillary order as the court thinks fit.
(3) The court must,
before making an order under
subsection (1)
directed at a person who is not an owner or occupier of the relevant land,
ensure that reasonable steps have been taken to give notice of the relevant
proceedings to an owner or occupier of the land.
(4) If a person to
whom an order under
subsection (1)
applies is not an owner or occupier of the relevant land at the time of
the making of the order, the court may authorise the person (or a person
authorised by him or her)—
(a) to enter the
land with such materials and equipment as are reasonably necessary to comply
with the order; and
(b) to enter and cross any land specified in the order with the materials
and equipment referred to in
paragraph (a)
for the purpose of gaining access to the relevant land.
(5) Subject to
subsection (6)
, an order under this section will cease to apply with respect to land if
or when the land is sold to a genuine arms-length purchaser for value.
(6)
Subsection (5)
does not apply if the order is noted against the relevant instrument of
title or, in the case of land not under the provisions of the
Real
Property Act 1886
, against the land under a scheme prescribed by the regulations for the
purposes of this subsection.
(7) A court may, on application, vary or revoke an order under this
section.
(8) A person who
fails to comply with an order under
subsection (1)
or
(2)
is, in addition to any liability for contempt, guilty of an
offence.
Maximum penalty: $20 000.
(9) An owner or occupier of land, or any other person, who hinders or
obstructs a person in carrying out the requirements of an order under
subsection (1)
or
(2)
or entering or crossing land under
subsection (4)
is guilty of an offence.
Maximum penalty: $5 000.
216—Recovery
of economic benefit
(1) If in any
proceedings under this Act, a court finds that a person has contravened this
Act, the court may, in addition to any penalty that it may impose, order the
person to pay to the Commission an amount not exceeding the court's estimation
of the amount of economic benefit acquired by the person, or accrued or accruing
to the person, as a result of the contravention.
(2) For the purposes of
subsection (1)
, an economic benefit obtained by delaying or avoiding costs will be taken
to be an economic benefit acquired as a result of a contravention if the
contravention can be attributed (in whole or in part) to that delay or
avoidance.
(3) A court may, by an order under this section, fix a period for
compliance and impose any other requirements the court considers necessary or
expedient for enforcement of the order.
(4) An amount paid to the Commission in accordance with an order under
subsection (1)
must be paid into the Planning and Development Fund.
217—Enforceable
voluntary undertakings
(1) The Chief Executive may accept (by written notice) a written
undertaking given by a person in connection with a matter relating to a
contravention or alleged contravention by the person of this Act.
(2) The giving of an undertaking does not constitute an admission of guilt
by the person giving the undertaking in respect of the contravention or alleged
contravention to which the undertaking relates.
(3) A person must not contravene an undertaking made by the person that is
in effect.
Maximum penalty: $20 000.
(4) If the Chief Executive considers that a person has contravened an
undertaking accepted by the Chief Executive, the Chief Executive may apply to
the Court for enforcement of the undertaking.
(5) If the Court is
satisfied that the person has contravened the undertaking, the Court, in
addition to the imposition of any penalty, may make any of the following
orders:
(a) an order that the person must comply with the undertaking or take
specified action to comply with the undertaking;
(b) an order discharging the undertaking;
(c) an order directing the person to pay to the Chief
Executive—
(i) the costs of the proceedings; and
(ii) the reasonable costs of the Chief Executive in monitoring compliance
with the undertaking in the future;
(d) any other order that the Court considers appropriate in the
circumstances.
(6) A person must not fail to comply with an order under
subsection (5)
.
Maximum penalty: $30 000.
(7) A person who has made an undertaking may, at any time, with the
written agreement of the Chief Executive—
(a) vary the undertaking; or
(b) withdraw the undertaking.
(8) However, the provisions of the undertaking cannot be varied to provide
for a different alleged contravention of this Act.
(9) Subject to this section, no proceedings for a contravention or alleged
contravention of this Act may be brought against a person if an undertaking is
in effect in relation to that contravention.
(10) No proceedings may be brought for a contravention or alleged
contravention of this Act against a person who has made an undertaking in
respect of that contravention and has completely discharged the
undertaking.
(11) The Chief Executive may accept an undertaking in respect of a
contravention or alleged contravention before proceedings in respect of that
contravention have been finalised.
(12) If the Chief Executive accepts an undertaking before the proceedings
are finalised, the Chief Executive must take all reasonable steps to have the
proceedings discontinued as soon as possible.
(13) The Chief Executive must publish, on the SA planning portal,
notice of—
(a) the giving of an undertaking under this section; or
(b) of the variation or withdrawal of an undertaking under this
section.
Part 19—Regulation
of advertisements
(1) If, in the
opinion of the Commission or a council, an advertisement or advertising
hoarding—
(a) disfigures the natural beauty of a locality or otherwise detracts from
the amenity of a locality; or
(b) is contrary to the character desired for a locality under the Planning
and Design Code,
the Commission or council may, by notice served in accordance with the
regulations on the advertiser or the owner or occupier of the land on which the
advertisement or advertising hoarding is situated, whether or not a development
authorisation has been granted in respect of the advertisement or advertising
hoarding, order that person to remove or obliterate the advertisement or to
remove the advertising hoarding (or both) within a period specified in the
notice (which must be a period of at least 28 days from the date of service of
the notice).
(2) An order under
subsection (1)
may not be made in relation to—
(a) an advertisement the display of which is authorised under the
Local
Government Act 1999
, the
Local
Government (Elections) Act 1999
or the
Electoral
Act 1985
; or
(b) an advertisement required to be displayed under the provisions of some
other Act; or
(c) an advertisement for the sale or lease of land situated on the land
concerned; or
(d) an advertisement of a prescribed class.
(3) If a person on whom a notice is served under
subsection (1)
fails to comply with a notice within the time allowed in the
notice—
(a) the Commission or council may itself enter on the land and take the
necessary steps for carrying out the requirements of the notice and may recover
the costs of so doing, as a debt, from the person on whom the notice was served;
and
(b) the person on whom the notice was served is guilty of an
offence.
Maximum penalty: $10 000.
Default penalty: $100.
(4) If a development authorisation has been given under this Act for the
erection or display of an advertisement, no further licence or other
authorisation in respect of the erection or display of the advertisement is
required under the
Local
Government Act 1999
or the
Local
Government (Elections) Act 1999
.
(5) A person against whom an order is made under this section may, within
1 month after service of the notice or such longer period as may be allowed
by the Court, appeal to the Court against the order and, on an appeal, the Court
may confirm, vary or quash the order subject to the appeal and make any
consequential or ancillary order or direction that it considers necessary or
expedient in the circumstances of the case.
219—Constitution
of Environment, Resources and Development Court
The following provisions apply in respect of the constitution of the
Environment, Resources and Development Court when exercising jurisdiction under
this Act:
(a) the Court may be constituted in a manner provided by the
Environment,
Resources and Development Court Act 1993
or may, if the Senior Judge of the Court so determines, be constituted of
a Judge and 1 commissioner;
(b) the provisions of the
Environment,
Resources and Development Court Act 1993
apply in relation to the Court constituted of a Judge and
1 commissioner in the same way as in relation to a full bench of the
Court;
(c) the Court may not be constituted of or include a commissioner
unless—
(i) in a case where only 1 commissioner is to sit (whether alone or
with another member or members of the Court)—the commissioner;
or
(ii) in any other case—at least 1 commissioner,
is a commissioner who has been specifically designated by the Governor as a
person who has expertise in fields that are relevant to the jurisdiction
conferred on the Court by this Act.
No act or omission in good faith in relation to a particular development
by—
(a) the Minister, the Commission, a relevant authority, a council or other
authority under this Act; or
(b) an authorised officer; or
(c) a building certifier,
after the development has been approved under this Act subjects that person
or body to any liability.
The regulations may require prescribed classes of persons to have
professional indemnity or other insurance of a kind prescribed by the
regulations.
222—Professional
advice to be obtained in relation to certain matters
(1) A relevant
authority, council, authorised officer or building certifier may, in the
exercise of a prescribed function, rely on a certificate of a person with
prescribed qualifications.
(2) A relevant
authority, council, authorised officer or building certifier must seek and
consider the advice of a person with prescribed qualifications, or a person
approved by the Minister for that purpose, in relation to a matter arising under
this Act that is declared by regulation to be a matter on which such advice
should be sought.
(3) A person may be approved by the Minister for the purposes of
subsection (2)
subject to such conditions as the Minister thinks fit, and the Minister
may vary or withdraw such an approval at any time.
(4) No act or omission by a person or body in good faith in reliance on a
certificate given under
subsection (1)
or advice given under
subsection (2)
subjects the person or body to any liability.
(5) A person must not undertake an engagement to provide a certificate or
advice for the purposes of this section in relation to a particular development
if the person—
(a) has been involved for remuneration in any aspect of the planning or
design of the development; or
(b) has a direct or indirect pecuniary interest in any aspect of the
development or any body associated with any aspect of the development.
Maximum penalty: $20 000.
(1) A person performing any function under this Act must not use
confidential information gained by virtue of his or her official position for
the purpose of securing a private benefit for himself or herself personally or
for some other person.
Maximum penalty: $15 000 or imprisonment for 2 years.
(2) A person performing any function under this Act must not intentionally
disclose confidential information gained by virtue of his or her official
position unless—
(a) the disclosure is necessary for the proper performance of that
function; or
(b) the disclosure is made to another who is also performing a function
under this Act; or
(c) the disclosure is made with the consent of the person who furnished
the information or to whom the information relates; or
(d) the disclosure is authorised or required under any other Act or law;
or
(e) the disclosure is authorised or required by a court or tribunal
constituted by law; or
(f) the disclosure is authorised by the regulations.
Maximum penalty: $15 000 or imprisonment for 2 years.
224—Accreditation
of building products etc
(1) Any building product, building method, design, component, equipment or
system accredited by an entity prescribed for the purposes of this section is
accredited for the purposes of this Act.
(2) The accreditation is subject to any conditions or variations imposed
by the entity from time to time and remains in force until the accreditation is
revoked by the entity.
(3) A relevant authority must not refuse to approve a development on the
ground that any building product, building method, design, component, equipment
or system connected with any building work is unsatisfactory if the product,
method, design, component, equipment or system is accredited by a prescribed
entity and it complies with any such accreditation.
(1) In this section—
designated entity means—
(a) the Minister; or
(b) the Commission; or
(c) the Chief Executive.
(2) A designated
entity, acting for the services of the State, is authorised to publish any
document, instrument or material in which copyright may exist.
(3) Without limiting
subsection (2)
, a designated entity may refuse to accept any document, instrument or
material—
(a) for any purpose
under this Act; and
(b) without limiting
paragraph (a)
—for lodging on the SA planning portal,
unless or until there is an agreement in place relating to any copyright
that may exist in the document, instrument or material (including an agreement
under which no remuneration will be payable for the use of copyright
material).
(4) Despite a preceding subsection, a designated entity may determine not
to accept any document, instrument or material in which copyright may exist if
the designated entity considers that the issue of copyright has not been dealt
with appropriately or adequately.
(1) If a charge on
land is created under a provision of this Act, the person in whose favour the
charge is created may deliver to the Registrar-General a notice, in a form
determined by the Registrar-General, setting out the amount of the charge and
the land over which the charge is claimed.
(2) On receipt of a
notice under
subsection (1)
, the Registrar-General must, in relation to any land referred to in the
notice, enter a note of the charge against the relevant instrument of title or,
in the case of land not under the provisions of the
Real
Property Act 1886
, against the land.
(3) Where a note
has been entered under
subsection (2)
, the Registrar-General must not register an instrument affecting the land
to which the entry relates unless—
(i) was executed before the entry was made; or
(ii) has been executed under or pursuant to an agreement entered into
before the entry was made; or
(iii) relates to an instrument registered before the entry was made;
or
(b) the instrument
is an instrument of a prescribed class; or
(c) the instrument is expressed to be subject to the operation of the
charge; or
(d) the instrument
is a duly stamped conveyance that results from the exercise of a power of sale
under a mortgage, charge or encumbrance in existence before the entry was
made.
(4) An instrument registered under
subsection (3)(a)
or
(b)
has effect, in relation to the entry, as if it had been registered before
the entry was made.
(5) If an instrument is registered under
subsection (3)(d)
, the charge will be taken to be cancelled by the registration of the
instrument and the Registrar-General must make the appropriate entries to give
effect to the cancellation.
(6) The person in whose favour a charge exists must, if the amount to
which the charge relates is paid, by notice to the appropriate authority in a
form determined by the Registrar-General, apply for the discharge of the
charge.
(7) The Registrar-General must then cancel the relevant entry.
227—Registering
authorities to note transfer
(1) The
Registrar-General or another authority required or authorised under a law of the
State to register or record transactions affecting assets, rights or
liabilities, or documents relating to such transactions, must, on application
under this section, register or record in an appropriate manner the transfer to
the Minister or another body of an asset, right or liability by regulation,
proclamation or notice under this Act.
(2) An instrument relating to an asset, right or liability that has
transferred to the Minister or a body by regulation, proclamation or notice
under this Act must, if the instrument is executed by the Minister or the body
and is otherwise in an appropriate form, be registered or recorded by the
Registrar-General or another appropriate authority despite the fact that the
Minister or the body has not been registered or recorded as the proprietor of
the property under
subsection (1)
.
(3) The vesting of property by regulation, proclamation or notice under
this Act, and an instrument evidencing or giving effect to that vesting, are
exempt from stamp duty.
228—Approvals
by Minister or Treasurer
A matter under this Act for which the approval of the Minister or the
Treasurer is required will be regarded as having that approval—
(a) whether the approval is given in respect of that particular matter or
a class of matters to which it belongs; and
(b) whether the approval is given by the Minister or Treasurer or by a
person acting with the authority of the Minister or Treasurer.
229—Compulsory
acquisition of land
(1) The Minister may acquire land under this section where the Minister
considers that the acquisition of the land is reasonably
necessary—
(a) for the operation or implementation of the Planning and Design Code;
or
(b) for the implementation of a development authorisation of a prescribed
class; or
(c) in order to further the objects of this Act.
(2) The
Land
Acquisition Act 1969
applies to the acquisition of land in pursuance of this section.
(1) The Governor may
make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1)
, regulations may be made with respect to any of the matters specified in
Schedule 5
.
(3) A regulation made for the purposes of this Act may operate subject to
prescribed conditions.
(4) The regulations
may adopt, wholly or partially and with or without modification—
(a) an instrument relating to matters in respect of which regulations may
be made under this Act or otherwise relating to any aspect of development;
or
(b) an amendment to such an instrument.
(5) Any regulations adopting an instrument, or an amendment to an
instrument, may contain such incidental, supplementary and transitional
provisions as appear to the Governor to be necessary.
(6) The regulations
or an instrument adopted by the regulations may—
(a) refer to or incorporate, wholly or partially and with or without
modification, a standard or other document prepared or published by a prescribed
body, either as in force at the time the regulations are made or as in force
from time to time; and
(b) be of general or limited application; and
(c) make different provision according to the circumstances or entities to
which they are expressed to apply; and
(d) provide that any matter or thing is to be determined, dispensed with,
regulated or prohibited according to the discretion of the Minister, the
Commission, a joint planning board, a council, the Chief Executive, the
Commissioner for Consumer Affairs, an authorised person or any other specified
body or person.
(7) Without limiting a preceding subsection, the regulations
may—
(a) provide for the effect of failing to comply with any time limit or
requirement prescribed by the regulations, including by providing that any
action taken after the expiration of any such time limit or in a manner
inconsistent with any such requirement will not have effect under this Act;
and
(b) specify circumstances where a notice may be taken to have been given
or served for the purposes of this Act.
Schedule 1—Disclosure
of financial interests
(1) In this Schedule—
designated entity means—
(a) the Commission; or
(b) a joint planning board; or
(c) an assessment panel;
family, in relation to a prescribed member,
means—
(a) a spouse or domestic partner of the member; or
(b) a child of the member who is under the age of 18 years and normally
resides with the member;
family company of a prescribed member means a proprietary
company—
(a) in which the member or a member of the member's family is a
shareholder; and
(b) in respect of which the member or a member of the member's family, or
any such persons together, are in a position to cast, or control the casting of,
more than one-half of the maximum number of votes that might be cast at a
general meeting of the company;
family trust of a prescribed member means a trust (other than
a testamentary trust)—
(a) of which the member or a member of the member's family is a
beneficiary; and
(b) which is established or administered wholly or substantially in the
interests of the member or a member of the member's family, or any such persons
together;
person related to a prescribed member means—
(a) a member of the prescribed member's family; or
(b) a family company of the prescribed member; or
(c) a trustee of a family trust of the prescribed member;
prescribed member means a member of a designated entity who
is required to disclose his or her financial interests under this Act;
relevant official means—
(a) in relation to a member of the Commission, a joint planning board or a
regional assessment panel—the Minister;
(b) in relation to a member of an assessment panel—a person
prescribed by the regulations.
(2) For the purposes of this Schedule, a person who is the object of a
discretionary trust is to be taken to be a beneficiary of that trust.
(1) A prescribed
member of a designated entity must—
(a) on appointment, submit to the relevant official a return in the
prescribed form relating to his or her pecuniary interests in accordance with
the regulations; and
(b) on an annual basis in accordance with the requirements of the
regulations, submit to the relevant official an annual return in the prescribed
form relating to his or her pecuniary interests in accordance with the
regulations.
(2) Without limiting the effect of
subclause (1)
, a prescribed member of a designated entity will be taken to have a
pecuniary interest for the purposes of this clause if a person related to the
member has that interest.
(3) A prescribed member who has submitted a return under this Schedule may
at any time notify the relevant official of a change or variation in the
information appearing on the register in respect of the member.
(1) A relevant official must maintain a register of interests and cause to
be entered in the register all information furnished under this
Schedule.
(2) A person is entitled to inspect (without charge) the register at the
place where it is kept during ordinary office hours.
(3) A person is entitled, on payment of a fee (specified by the relevant
official as a standard fee to cover the relevant official's administrative and
copying costs), to a copy of the register.
(1) A prescribed member of a designated entity who fails to comply with a
requirement under this Schedule is guilty of an offence.
Maximum penalty: $10 000.
(2) A prescribed member of a designated entity who submits a return under
this Schedule that is to the knowledge of the member false or misleading in a
material particular (whether by reason of information included in or omitted
from the return) is guilty of an offence.
Maximum penalty: $10 000.
(a) publish information derived from a register under this Schedule unless
the information constitutes a fair and accurate summary of the information
contained in the register and is published in the public interest; or
(b) comment on the facts set forth in a register under this Schedule
unless the comment is fair and published in the public interest and without
malice.
(2) If information or comment is published by a person in contravention of
subclause (1)
, the person, and any person who authorised the publication of the
information or comment, is guilty of an offence.
Maximum penalty: $10 000.
Schedule 2—Subsidiaries
of joint planning boards
1—Application
for Ministerial approval
(1) A joint planning board proposing to establish a subsidiary of the
board under this Act must apply to the Minister under this Schedule.
(2) An application by a joint planning board for the approval of the
Minister to establish a subsidiary must—
(a) be in a form approved by the Minister; and
(b) be accompanied by information required by the Minister; and
(c) be accompanied by a copy of the proposed charter for the
subsidiary.
(3) A subsidiary
comes into existence if or when the Minister, by notice published in the
Gazette, signifies his or her approval of the establishment of the
subsidiary.
(4) The joint planning board must, in conjunction with the publication of
a notice under
subclause (3)
, ensure that a copy of the charter of the subsidiary is published on the
SA planning portal.
A subsidiary established under this Schedule—
(a) is a body corporate; and
(b) has the name assigned to it by its charter; and
(c) has the powers, functions and duties specified in its charter;
and
(d) holds its property on behalf of the joint planning board.
(1) A charter must be prepared for a subsidiary by the joint planning
board.
(2) The charter must address—
(a) the purpose for which the subsidiary is established;
(b) the constitution of a board of management as the subsidiary's
governing body;
(c) the powers, functions and duties of the subsidiary;
(d) staffing issues, including whether the subsidiary may employ staff
and, if so, the process by which conditions of employment will be
determined;
(e) whether the subsidiary is intended to be partially or fully
self-funding, and other relevant arrangements relating to costs and
funding;
(f) any special accounting, internal auditing or financial systems or
practices to be established or observed by the subsidiary;
(g) the acquisition or disposal of assets;
(h) the manner in which surplus revenue is to be dealt with by the
subsidiary;
(i) the nature and scope of any investment which may be undertaken by the
subsidiary;
(j) the subsidiary's obligations to report on its operations, financial
position and other relevant issues;
(k) other matters contemplated by this Schedule or prescribed by the
regulations.
(3) The joint planning board may include in the charter other matters that
it considers to be appropriate.
(4) The joint planning board must ensure that a copy of the charter is
published on the SA planning portal.
(5) The charter may be reviewed by the joint planning board at any
time.
(6) The joint planning board must, if it amends a charter—
(a) furnish a copy of the charter, as amended, to the Minister;
and
(b) ensure that a copy of the charter, as amended, is published on the
SA planning portal.
4—Appointment
of board of management
(1) Subject to the charter of the subsidiary, the membership of a board of
management of a subsidiary will be determined by the joint planning board and
may consist of, or include, persons who are not members of the joint planning
board.
(2) A board member will be appointed by the joint planning board for a
term, not exceeding 3 years, specified in the instrument of appointment
and, at the expiration of a term of office, is eligible for
reappointment.
(3) The office of board member becomes vacant if the board
member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the joint planning board; or
(d) becomes bankrupt or applies to take the benefit of a law for the
relief of insolvent debtors; or
(e) is removed from office by the joint planning board by written
notice.
(4) A board member must be appointed to chair meetings of the board of
management.
(5) On the office of a board member becoming vacant, a person may be
appointed in accordance with this clause to the vacant office.
(6) The joint planning board may appoint a suitable person to be a deputy
of a board member and to act as a member of the board during any period of
absence of the board member.
(7) The joint planning board may give directions in relation to an actual
or potential conflict of duty between offices held concurrently, or in relation
to some other incompatibility between offices held concurrently and, if the
person concerned complies with those directions, he or she is excused from any
breach that would otherwise have occurred.
An act or proceeding of a board of management is not invalid by reason only
of a vacancy in its membership or a defect in the appointment of a
member.
6—Proceedings
of board of management
(1) A quorum of a board of management will be determined by the charter of
the subsidiary.
(2) The board member appointed to chair the board of management will
preside at meetings of the board of management or, in the absence of that
member, another board member chosen by those present will preside.
(3) A decision carried by a majority of votes cast by board members at a
meeting is a decision of the board of management.
(4) Each board member present at a meeting of the board of management is
entitled to 1 vote on any matter arising for decision and, if the votes are
equal, the board member presiding at the meeting is entitled to a second or
casting vote.
(5) A telephone or video conference between board members will, for the
purposes of this clause, be taken to be a meeting of the board of management at
which the participating board members are present if—
(a) notice of the conference is given to all board members in the manner
determined by the board of management for that purpose; and
(b) each participating board member is capable of communicating with every
other participating board member during the conference.
(6) A proposed resolution of the board of management becomes a valid
decision of the board of management despite the fact that it is not voted on at
a meeting if—
(a) notice of the proposed resolution is given to all board members in
accordance with procedures determined by the board of management; and
(b) a majority of the board members express their concurrence in the
proposed resolution in writing or by electronic communication.
(7) A person authorised in writing by the joint planning board for the
purposes of this clause may attend (but not participate in) a meeting of the
board of management and may have access to papers provided to board members for
the purpose of the meeting.
(8) If a board of
management considers that a matter dealt with at a meeting attended by a
representative of the joint planning board should be treated as confidential,
the board of management may advise the joint planning board of that opinion,
giving the reason for the opinion, and the joint planning board may, subject to
subclause (9)
, act on that advice as the joint planning board thinks fit.
(9) If the joint
planning board is satisfied on the basis of the board of management's advice
under
subclause (8)
that the subsidiary owes a duty of confidence in respect of a matter, the
joint planning board must ensure the observance of that duty in respect of the
matter, but this subclause does not prevent a disclosure as required in the
proper performance of the functions or duties of the joint planning
board.
(10) The board of management must have accurate minutes kept of its
proceedings.
(11) Subject to this clause, and to a direction of the joint planning
board, the board of management may determine its own procedures.
7—Specific
functions of board of management
(1) The board of management of a subsidiary is responsible for the
administration of the affairs of the subsidiary.
(2) The board of management of a subsidiary must ensure as far as
practicable—
(a) that the subsidiary observes all plans, targets, structures, systems
and practices required or applied to the subsidiary by the joint planning board;
and
(b) that all information furnished to the joint planning board is
accurate; and
(c) that the joint planning board is advised, as soon as practicable, of
any material development that affects the financial or operating capacity of the
subsidiary or gives rise to the expectation that the subsidiary may not be able
to meet its debts as and when they fall due.
(3) Anything done by the board of management in the administration of the
affairs of the subsidiary is binding on the subsidiary.
8—Board
members' duty of care etc
(1) A board member must at all times act with reasonable care and
diligence in the performance and discharge of official functions and duties, and
(without limiting the effect of the foregoing) for that purpose—
(a) must take reasonable steps to inform himself or herself about the
subsidiary and relevant aspects of the operations and activities of the joint
planning board; and
(b) must take reasonable steps through the processes of the board of
management to obtain sufficient information and advice about matters to be
decided by the board of management or pursuant to a delegation to enable him or
her to make conscientious and informed decisions; and
(c) must exercise an active discretion with respect to all matters to be
decided by the board of management or pursuant to a delegation.
(2) A board member is not bound to give continuous attention to the
affairs of the subsidiary but is required to exercise reasonable diligence in
attendance at and preparation for meetings of the board of management.
(3) In determining the degree of care and diligence required to be
exercised by a board member, regard must be had to the skills, knowledge or
acumen possessed by the board member and the degree of risk involved in a
particular circumstance.
(4) A board member does not commit a breach of duty under this clause by
acting in accordance with a direction from the joint planning board.
(1) A subsidiary must, in consultation with the joint planning board,
prepare and adopt a business plan consistent with its charter.
(2) A subsidiary and the joint planning board must ensure that the first
business plan of the subsidiary is prepared within 6 months after the
subsidiary is established.
(3) A business plan of a subsidiary continues in force for the period
specified in the plan or until the earlier adoption by the subsidiary of a new
business plan.
(4) A subsidiary must, in consultation with the joint planning board,
review its business plan on an annual basis.
(5) A subsidiary may, after consultation with the joint planning board,
amend its business plan at any time.
(6) A business plan must set out or include—
(a) the performance targets that the subsidiary is to pursue;
and
(b) a statement of the financial and other resources, and internal
processes, that will be required to achieve the subsidiary's performance
targets; and
(c) the performance measures that are to be used to monitor and assess
performance against targets.
(1) A subsidiary must have a budget for each financial year.
(2) Each budget of a subsidiary—
(a) must deal with each principal activity of the subsidiary on a separate
basis; and
(b) must be consistent with its business plan; and
(c) must comply with standards and principles prescribed by the
regulations; and
(d) must be provided to the joint planning board in accordance with the
regulations.
(3) A subsidiary may, with the approval of the joint planning board, amend
its budget for a financial year at any time before the year ends.
(4) A subsidiary may incur, for a purpose of genuine emergency or
hardship, spending that is not authorised by its budget.
(5) A subsidiary may, in a financial year, after consultation with the
joint planning board, incur spending before adoption of its budget for the year,
but the spending must be provided for in the appropriate budget for the
year.
11—Subsidiary
subject to direction by joint planning board
A subsidiary is subject to the direction and control of the joint planning
board.
(1) A subsidiary must, at the request of the joint planning board, furnish
to the joint planning board information or records in the possession or control
of the subsidiary as the joint planning board may require in such manner and
form as the joint planning board may require.
(2) If the board of management of the subsidiary considers that
information or a record furnished under this clause contains matters that should
be treated as confidential, the board of management may advise the joint
planning board of that opinion giving the reason for the opinion and the joint
planning board may, subject to
subclause (3)
, act on that advice as the joint planning board thinks fit.
(3) If the joint
planning board is satisfied on the basis of the board of management's advice
that the subsidiary owes duty of confidence in respect of a matter, the joint
planning board must ensure the observance of that duty in respect of the matter,
but this subclause does not prevent a disclosure as required in the proper
performance of the functions or duties of the joint planning board.
(1) A subsidiary must, at the request of the joint planning board, report
to the joint planning board on any matter, and on any basis, specified by the
joint planning board.
(2) A subsidiary
must, on or before a day determined by the joint planning board, furnish to the
joint planning board a report on the work and operations of the subsidiary for
the preceding financial year.
(3) A report under
subclause (2)
must—
(a) incorporate the audited financial statements of the subsidiary for the
relevant financial year; and
(b) contain any other information or report required by the council or
prescribed by the regulations.
(1) A subsidiary must establish and maintain effective auditing of its
operations.
(2) A subsidiary must establish an audit committee.
(3) Subject to the regulations, an audit committee will comprise persons
determined or approved by the joint planning board.
(4) The functions of an audit committee include—
(a) reviewing annual financial statements to ensure that they provide a
timely and fair view of the state of affairs of the subsidiary; and
(b) liaising with external auditors; and
(c) reviewing the adequacy of the accounting, internal auditing, reporting
and other financial management systems and practices of the subsidiary on a
regular basis.
(1) A subsidiary may delegate a function or power conferred on or vested
in the subsidiary—
(a) to a particular person or body; or
(b) to a person for the time being occupying a particular office or
position.
(2) A delegation—
(a) may be made subject to conditions or limitations specified in the
instrument of delegation; and
(b) if the instrument of delegation so provides, may be further delegated
by the delegate; and
(c) is revocable at will and does not derogate from the power of the
subsidiary to act in any matter.
A subsidiary must have a common seal and if a document appears to bear the
common seal of the subsidiary, it will be presumed in the absence of proof to
the contrary that the common seal of the subsidiary was properly affixed to the
document.
(1) Liabilities incurred or assumed by a subsidiary are guaranteed by the
joint planning board.
(2) A borrowing of a subsidiary requires the approval of the joint
planning board (which may be absolute or conditional).
(1) A subsidiary may be wound up by the Minister acting at the request of
the joint planning board.
(2) A subsidiary is wound up by the Minister publishing a notice published
in the Gazette.
(3) Any assets or liabilities of the subsidiary at the time of winding-up
vest in or attach to the joint planning board on the winding-up.
Schedule 3—Codes
of conduct and professional standards
(1) The Minister may adopt—
(a) a code of conduct to be observed by members of the Commission;
and
(b) a code of conduct to be observed by members of a joint planning board;
and
(c) a code of conduct to be observed by members of an assessment panel;
and
(d) a code of conduct to be observed by accredited professionals;
and
(e) a code of conduct to be observed by officers of relevant authorities
or other agencies who are acting under delegations, or in the performance of
statutory functions, under this Act.
(2) The Minister may vary a code of conduct, or adopt a new code of
conduct in substitution for an existing code of conduct, in operation under this
Schedule.
(3) Before the Minister adopts or varies a code of conduct under this
Schedule, the Minister must take reasonable steps to consult
with—
(a) the ERD Committee; and
(b) the LGA; and
(c) in the case of the code to be observed by accredited
professional—the Commissioner for Consumer Affairs.
If the Minister adopts or varies a code of conduct under this Schedule, the
Minster must—
(a) publish a notice of the adoption or variation in the Gazette;
and
(b) ensure that a copy of the code (as adopted or varied) is published on
the SA planning portal.
3—Professional
standards and investigations
(1) The regulations may
provide for matters relating to—
(a) compliance with a
code of conduct; and
(b) without limiting
paragraph (a)
—the conduct of accredited professionals,
including, for example—
(c) monitoring and auditing the activities undertaken by a person who
performs a function under this Act; and
(d) receiving or acting on complaints; and
(e) the conduct of investigations, including—
(i) by providing for the appointment of an investigator or investigators;
and
(ii) by requiring that a person provide information or materials, or
answer questions; and
(f) the provision of reports and recommendations; and
(g) the taking of disciplinary or other action against a person
who—
(i) has contravened, or failed to comply with, a code of practice;
or
(ii) in the case of an accredited professional—has acted in an
unprofessional or inappropriate manner, or failed to professionally discharge a
responsibility under this Act.
(2) In connection with
subclause (1)
, the regulations may—
(a) confer functions, powers and duties on the Commissioner for Consumer
Affairs, or on any other prescribed person or body; and
(b) vest jurisdiction in the South Australian Civil and Administrative
Tribunal under the
South
Australian Civil and Administrative Tribunal Act 2013
.
(3) The scheme established by
subclauses (1)
and
(2)
may—
(a) interact with the
accreditation scheme established under
Part 6
Division 4
; and
(b) in vesting jurisdiction in the South Australia Civil and
Administrative Tribunal, also vest jurisdiction in the tribunal for the purposes
of the scheme referred to in
paragraph (a)
.
Nothing in this Schedule limits, or derogates from, the operation of
Schedule 4
.
Schedule 4—Performance
targets and monitoring
(1) The Minister may, on the recommendation of the Commission, set
performance targets in relation to—
(a) any goal, policy or objective under a state planning policy;
or
(b) any objectives, priorities or targets included in a planning
agreement.
(2) A target must—
(a) set a clear and measurable goal; and
(b) specify a performance measure to enable the monitoring of progress
towards achieving the goal and the extent to which the goal is
achieved.
(3) The Minister may, from time to time, on the recommendation of the
Commission—
(a) vary a target; or
(b) withdraw a target.
(4) The Commission—
(a) must monitor the extent to which a target is being achieved;
and
(b) may publish periodic updates; and
(c) unless the target is achieved within an earlier time-frame, adjusted
or withdrawn, review each target at least once in every 5 years.
2—Monitoring
and evaluation of performance and trends
(1) The Commission may,
with the approval of the Minister, establish a scheme for the monitoring and
evaluation of performance in the exercise of statutory functions under this
Act.
(2) A scheme under
subclause (1)
may include—
(a) the collection, retention, analysis and provision of information;
and
(b) the provision of returns, reports and information to the Commission;
and
(c) requirements as to the undertaking of audits and self-assessments, or
requirements to arrange, or submit to, audits by persons who hold specified
qualifications; and
(d) the evaluation of performance and the preparation of reports by the
Commission; and
(e) other matters as the Commission thinks appropriate.
(3) The Commission may, from time to time, with the approval of the
Minister, vary or substitute a scheme under
subclause (1)
.
(4) The Commission must include in its annual report information about its
assessment of performance and trends under the scheme established under this
clause.
(1) Subject to
subclause (2)
, if the Minister, after consultation with the Commission, considers that
it is appropriate to exercise a power under this clause in relation to a person
or body that has performed, or that is responsible to perform, a function under
this Act (a designated entity), the Minister may appoint an
investigator or investigators to carry out an investigation and to report on the
matter.
(2) The Minister must
only act under this clause if the Minister has reason to believe that the
designated entity has—
(a) contravened or failed to comply with a provision of this Act in a
significant respect or to a significant degree; or
(b) failed to efficiently or effectively discharge a responsibility under
this Act in a significant respect or to a significant degree.
(3) The Minister must, before making an appointment under
subclause (1)
, give the designated entity an opportunity to explain its actions, and to
make submissions (including, if relevant, an indication of undertakings that the
designated entity is willing to give in order to take remedial action), to the
Minister within a period (being at least 28 days) specified by the
Minister.
(4) If the Minister decides to proceed under
subclause (1)
in relation to a council, the Minister must consult with the President of
the LGA with respect to the person or persons to be appointed to carry out the
investigation.
(5) An investigator
may, for the purposes of an investigation—
(a) require a
member or employee of the designated entity, or a public sector employee or
council employee assigned or engaged to assist the designated entity, to answer,
orally or in writing, questions put by the investigator to the best of his or
her knowledge, information and belief;
(b) require a person to whom questions are put under
paragraph (a)
to verify the answers to those questions by declaration;
(c) require a
person to produce for examination by the investigator books, papers or other
records relevant to the subject matter of the investigation;
(d) retain books, papers or other records produced under
paragraph (c)
for such reasonable period as the investigator thinks fit and make copies
of any of them or of any of their contents.
(6) Subject to
subclause (9)
, a person who refuses or fails to comply with a requirement under
subclause (5)
is guilty of an offence.
Maximum penalty: $20 000.
(7) Subject to
subclause (8)
, a person is not excused from answering a question or from producing
books, papers or other records under this section on the ground that to do so
might tend to incriminate the person or make the person liable to a
penalty.
(8) However, if
compliance by a natural person with a requirement to answer a question or to
produce a book, paper or other record might tend to incriminate the person or
make the person liable to a penalty, then—
(a) in the case of a person who is required to produce a book, paper or
record, the book, paper or record (as distinct from the contents of the book,
paper or record); or
(b) in any other case, the answer given in compliance with the
requirement,
is not admissible in evidence against the person in proceedings for an
offence or for the imposition of a penalty (other than proceedings in respect of
the making of a false or misleading statement).
(9) A person is not
obliged to provide information under this clause that is privileged on the
ground of legal professional privilege.
(10) At the
conclusion of an investigation, the investigator or investigators must present a
written report to the Minister on the results of the investigation.
(11) The report may, if the investigator or investigators think fit,
include recommendations to the Minister on what action (if any) should be taken
in the circumstances.
(12) The Minister must supply the designated entity with a copy of a
report presented under
subclause (10)
.
(13) The Minister
may, on the basis of a report presented under
subclause (10)
—
(a) make
recommendations to the designated entity; or
(b) if the Minister considers that the designated entity
has—
(i) contravened or failed to comply with a provision of this Act in a
significant respect or to a significant degree; or
(ii) failed to efficiently or effectively discharge a responsibility under
this Act in a significant respect or to a significant degree,
give directions to the designated entity to rectify the matter, or to take
specified action with a view to preventing a recurrence of any act, failure or
irregularity.
(14) The Minister must, before taking action under
subclause (13)
, give the designated entity an opportunity to make submissions to the
Minister on the report on which the action is based within a period (being at
least 28 days) specified by the Minister.
(a) the Minister makes a recommendation to a designated entity under
subclause (13)(a)
; and
(b) the Minister subsequently considers that the designated entity has
not, within a reasonable period, taken appropriate action in view of the
recommendation,
the Minister may, after consultation with the designated entity, give
directions to it.
(16) A designated entity must comply with a direction under
subclause (13)
or
(15)
.
(17) No action in defamation lies in respect of the contents of a report
under this clause.
Nothing in this Schedule limits, or derogates from, the operation of
Schedule 3
.
1 The
procedures to be followed in relation to an application for any form of
development authorisation under this Act (whether by the applicant or any other
person or body), and the ability of a relevant authority to lapse an application
in prescribed circumstances.
2 The
provision of any report, statement, document, plan, drawing, specification, or
other form of information to any person or body that performs a function under
or pursuant to this Act.
3 The
giving of public notice and public consultation in relation to any prescribed
class of matter.
4 The
form, manner and mode of giving other forms of notice under this Act (including
in respect of the service of a notice, document or instrument).
5 The
provision of returns, documents and other forms of information to the Minister,
the Chief Executive or any other prescribed person or body for the purposes of
this Act.
6 The
keeping of records, statistics and other information by any person or body that
performs a function under or pursuant to this Act and the provision of reports
based on that information to the Minister, the Chief Executive or any other
prescribed person or body.
7 The
giving of notice before any prescribed class of activity or procedure is
commenced, and the notification of the occurrence of any prescribed class of
event.
8 The
form and content of any application, certificate, statement or other document
required or issued under this Act.
9 The
qualifications or experience that must be held by a person who exercises or
performs (or who is to exercise or perform) a prescribed power or function under
or in relation to the operation of this Act (including as a member of a panel or
other body established under this Act and including by prescribing a range of
qualifications or experience that may be taken into account), and the training,
examination, registration or accreditation of any person in prescribed
circumstances.
10 The
regulation, restriction or prohibition of the performance of any function of a
prescribed class (including so as to provide that a particular step must be
taken by a relevant authority or other body or person within a prescribed
period).
11 Insurance
requirements for prescribed classes of persons in prescribed
circumstances.
12 The
registration and retention of any application, report, document, plan,
specification or other material lodged or provided under this Act.
13 The
definition of words and expressions in an instrument under this Act.
14 The
classification of various forms of development for the purposes of this
Act.
15 The
regulation of the design, construction, quality, safety, amenity or upkeep of
buildings, including, for example:
(a) the siting of buildings;
(b) the fixing of building lines in relation to public roads or
thoroughfares;
(c) the height of buildings;
(d) the minimum height or dimensions of any room or area within
buildings;
(e) the fire safety of buildings, and the provision and maintenance of
fire-fighting equipment and other precautions;
(f) the heating, cooling and air-conditioning of buildings;
(g) the moisture resistance of buildings;
(h) the prevention of flooding of buildings;
(i) the noise-resistant construction of buildings;
(j) the environmental efficiency of buildings;
(k) the maintenance of buildings;
(l) the health, safety or welfare of the occupants of any
building.
16 Without
limiting any other item, the requirement that—
(a) a building; or
(b) building products, building methods, designs, components, equipment or
systems (including systems used in connection with a building); or
(c) land used in conjunction with a building; or
(d) fixtures, fittings or other items associated with land comprising the
site of any building,
comply with any requirement relating to the sustainability of a building,
or of the occupation or use of a building, from an environmental perspective,
including so as to provide efficiencies with respect to the use of water,
electricity or other resources or forms of energy, to reduce greenhouse gas
emissions or the use of resources or energy, or to provide a rating system to
facilitate the assessment of proposed development or to regulate the use or
development of any building in accordance with prescribed standards.
17 The
regulation, control, restriction or prohibition of building work, including, for
example:
(a) the preparation of land for building work;
(b) the structural strength of building work, products and
materials;
(c) the use of public space and other forms of open space for building
work;
(d) safety in relation to the performance of building work.
18 The
classification of buildings and the application of the regulations to different
classes of buildings.
19 The
regulation, restriction or prohibition of the occupation of buildings.
20 The
restriction or prohibition of building work in prescribed
circumstances.
21 The
regulation, restriction or prohibition of building work over a public place and
the standards to which a building over a public place must conform.
22 Utility,
safety and hygiene services located in, or related to, buildings.
23 The
regulation of projections from buildings and dangers arising from projections
from building work.
24 Access
to and within buildings, and egress from buildings.
25 The
manner of alteration and demolition of, and additions to, buildings.
26 The
creation of registers of certificates of occupancy under this Act and other
matters relating to such certificates.
27 The
inspection or testing of buildings, building work, fixtures, fittings, plant,
materials, products, components, equipment or systems.
28 The
accreditation of building products, building methods, designs, components,
equipment or systems (including the issue of certificates of accreditation in
prescribed circumstances).
29 The
form and content of plans and specifications under this Act.
30 The
availability for public inspection of any information or document for the
purposes of this Act and the provision of copies of any such information or
document to the public (whether on payment of a prescribed fee, on payment of a
reasonable fee fixed by an authority of a prescribed class, or without
charge).
31 The
prescription, and payment, of fees (including differential fees and including
fees that relate to any service provided by the Commission, the Chief Executive
or the Department), and the recovery of expenses and the distribution of fees
between relevant authorities or other entities.
32 The
ability of any prescribed class of person or body to remit, reduce, waive or
refund a fee payable under this Act.
33 The
application of any amount payable under this Act.
35 The
prescription of time limits for the purposes of this Act.
36 The
inspection of any place or work relevant to the assessment of any proposal,
application or work under this Act, or to which this Act applies.
37 The
provision of a notice to a person or body in prescribed circumstances.
38 The
service of any notice or document under this Act.
39 The
transfer of development rights between sites.
40 The
practices or procedures of assessment panels.
41 Practice
directions to be observed by accredited professionals.
42 The
practice or procedure of the Court when exercising the jurisdiction under this
Act.
43 The
fees and costs that are payable in respect of proceedings before the Court under
this Act.
44 The
payment of money into any fund under this Act.
45 The
imposition of penalties, not exceeding $10 000, for breaches of the
regulations.
46 The
fixing of an expiation fee, not exceeding $750, in respect of any offence
against this Act or the regulations and the designation of persons who are
authorised to give expiation notices.
Schedule 6—Repeal
and certain amendments
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Repeal
(1) The
Development
Act 1993
is repealed.
(2) The Governor may, by proclamation, suspend the repeal of a specified
provision or specified provisions of the
Development
Act 1993
until a subsequent day to be fixed by proclamation, or a day to be fixed
by subsequent proclamation.
(3) For the purposes of subclause (2), a reference to a provision of the
Development
Act 1993
extends to a part of a provision (including a definition within a
provision).
Part 3—Amendment of Character Preservation
(Barossa Valley) Act 2012
3—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of development
authorisation—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
(2) Section 3(1), definition of Planning
Strategy—delete the definition
(3) Section 3(1), definition of relevant
authority—delete "
Development
Act 1993
" wherever occurring and substitute, in each case:
Planning,
Development and Infrastructure Act 2015
(4) Section 3(2)—delete "of the Planning Strategy" and
substitute:
of a state planning policy under the
Planning,
Development and Infrastructure Act 2015
4—Amendment
of section 4—Interaction with other Acts
Section 4(2)—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
5—Amendment
of section 5—Administration of Act
Section 5—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
6—Amendment
of section 7—Character values of district
Section 7(2)(b)—delete paragraph (b) and substitute:
(b) the policies to be developed and applied by any state planning policy
and the Planning and Design Code under the
Planning,
Development and Infrastructure Act 2015
in relation to the district.
7—Amendment
of section 8—Limitations on land division in district
(1) Section 8—delete "
Development
Act 1993
" wherever occurring and substitute, in each case:
Planning,
Development and Infrastructure Act 2015
(2) Section 8—delete "Development Assessment Commission" wherever
occurring and substitute, in each case:
State Planning Commission
(3) Section 8(7)(c)—delete paragraph (c) and
substitute:
(c) the prescribed allotment provisions provide for a large minimum
allotment size than the provisions that would otherwise apply in relation to the
proposed development,
(4) Section 8(7)—delete "despite the provisions of the Development
Plan" and substitute:
despite the provisions of the Planning and Design Code
(5) Section 8(7)—delete "despite section 53(2)" and
substitute:
section 118(2)
(6) Section 8(9)—before the definition of "prescribed
day" insert:
prescribed allotment provisions means the provisions of the
Development Plan under the
Development
Act 1993
relating to the rural area and relating to the minimum size allotments
that were in force on the prescribed day (after the commencement of the
operation of any amendments to that Development Plan) that were made on that
day;
8—Amendment
of section 10—Review of Act
Section 10(3)(a)—delete "and any relevant provisions of the Planning
Strategy"
9—Amendment
of section 11—Regulations
Section 11(2)(a)—delete "Development Assessment Commission" and
substitute:
State Planning Commission
Part 4—Amendment of Character Preservation
(McLaren Vale) Act 2012
10—Amendment
of section 3—Interpretation
(1) Section 3(1), definition of development
authorisation—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
(2) Section 3(1), definition of Planning
Strategy—delete the definition
(3) Section 3(1), definition of relevant
authority—delete "
Development
Act 1993
" wherever occurring and substitute, in each case:
Planning,
Development and Infrastructure Act 2015
(4) Section 3(2)—delete "of the Planning Strategy" and
substitute:
of a state planning policy under the
Planning,
Development and Infrastructure Act 2015
11—Amendment
of section 4—Interaction with other Acts
Section 4(2)—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
12—Amendment
of section 5—Administration of Act
Section 5—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
13—Amendment
of section 7—Character values of district
Section 7(2)(b)—delete paragraph (b) and substitute:
(b) the policies to be developed and applied by any state planning policy
and the Planning and Design Code under the
Planning,
Development and Infrastructure Act 2015
in relation to the district.
14—Amendment
of section 8—Limitations on land division in district
(1) Section 8—delete "
Development
Act 1993
" wherever occurring and substitute, in each case:
Planning,
Development and Infrastructure Act 2015
(2) Section 8—delete "Development Assessment Commission" wherever
occurring and substitute, in each case:
State Planning Commission
15—Amendment
of section 10—Review of Act
Section 10(3)(a)—delete "and any relevant provisions of the Planning
Strategy"
16—Amendment
of section 11—Regulations
Section 11(2)(a)—delete "Development Assessment Commission" and
substitute:
State Planning Commission
Part 5—Amendment of Environment, Resources
and Development Court Act 1993
17—Amendment
of section 21—Principles governing hearings
Section 21—after subsection (4) insert:
(5) Without limiting a preceding subsection, the Court—
(a) may require evidence or argument to be presented in writing and decide
on the matters on which it will hear oral evidence or argument; and
(b) may limit the time available for presenting the respective cases of
parties before it at a hearing to an extent that it considers would not impede
the fair and adequate presentation of the cases.
After section 35 insert:
35A—Electronic hearings and proceedings without
hearings
(1) If the Court thinks it appropriate, it may allow the parties and their
representatives and any witnesses (or 1 or more of them) to participate in a
hearing in any proceedings by means of telephone, video link, or any other
system or method of communication.
(2) If the Court thinks it appropriate, it may conduct all or part of any
proceedings entirely on the basis of documents without the parties or their
representatives or any witnesses attending or participating in a
hearing.
(3) If the Court acts under this section, the Court is to take steps to
ensure that the public has access to, or is precluded from access to, matters
disclosed in the proceedings to the same extent as if the proceedings had been
heard before the Court with the attendance in person of all persons involved in
the proceedings.
Part 6—Amendment of Liquor Licensing
Act 1997
After section 11B insert:
11C—Steps to avoid conflict with planning
system
The Commissioner should—
(a) in the development and implementation of a code of practice;
or
(b) in the assessment of an application for a licence under this Act;
or
(c) in the imposition of conditions under this Act,
take reasonable steps to avoid any inconsistency with, or the duplication
of, matters that are dealt with or addressed under the
Planning,
Development and Infrastructure Act 2015
.
20—Amendment
of section 76—Other rights of intervention
Section 76—after subsection (2) insert:
(2a) A representation under subsection (2) is not to extend to a
matter that is dealt with or addressed under the
Planning,
Development and Infrastructure Act 2015
.
Part 7—Amendment of Local Government
Act 1999
21—Amendment
of section 221—Alteration of road
Section 221(3)(b)—delete paragraph (b) and substitute:
(b) the alteration is approved as part of a development authorisation
under the
Planning,
Development and Infrastructure Act 2015
; or
22—Amendment
of section 222—Permits for business purposes
Section 222—after subsection (6) insert:
(6a) This section does not apply to the use of a public road approved as
part of a development authorisation under the
Planning,
Development and Infrastructure Act 2015
.
After section 234 insert:
234A—Interaction with processes associated with
development authorisations
(1) A person who—
(a) alters a public road; or
(b) uses a public road for business purposes,
as part of a development authorisation under the
Planning,
Development and Infrastructure Act 2015
—
(c) must comply with any design standard or other requirement that applies
under the
Planning,
Development and Infrastructure Act 2015
; and
(d) is not required to comply with any code of practice or other
requirement that applies under this Act to the extent of any inconsistency
between—
(i) any design standard or other requirement referred to in
paragraph (a); and
(ii) any code of practice or other requirement that applies under this
Act.
(2) If a person to whom section 221(3)(b) or 222(6a) applies considers
that an act of a council is unreasonably preventing or delaying the ability of
the person to undertake development in accordance with the relevant development
authorisation, the person may apply to the ERD Court for a review of the
matter.
(3) The ERD Court may, in acting on an application under
subsection (2), examine and review the act of the council on such basis as
the ERD Court thinks fit.
(4) The ERD Court may, on a review under this section—
(a) dismiss the application; or
(b) remit the subject matter of the application to the council for further
consideration; or
(c) order the council to take such action as the ERD Court thinks
fit,
and, in doing so, may make any consequential or ancillary order or
direction, or impose any condition, that it considers necessary or
expedient.
(5) A reference in subsections (2) and (3) to an act includes a
reference to an omission.
(6) Nothing in this section—
(a) requires a person to take any other step under this Act before taking
action under this section; or
(b) limits the ability of a person from taking action under any other
section of this Act.
(7) In this section—
ERD Court means the Environment, Resources and Development
Court.
Part 8—Amendment of Public Sector
Act 2009
After section 10 insert:
10A—Agencies to organise activities according to
planning regions
(1) The Premier may give directions to public sector agencies requiring
them to provide services and infrastructure, undertake planning and organise
their activities on the basis of the planning regions established under the
Planning,
Development and Infrastructure Act 2015
.
(2) A direction under this section is not binding on a public sector
agency to the extent (if any) to which it would impede or affect the performance
of a quasi-judicial or statutorily independent function of the agency.
Part 9—Amendment of Urban Renewal
Act 1995
25—Amendment
of section 5—Functions
Section 5(d)—delete "section 37 of the
Development
Act 1993
" and substitute:
section 115 of the
Planning,
Development and Infrastructure Act 2015
26—Amendment
of section 7C—Functions of URA
Section 7C(1)(f)—delete "section 37 of the
Development
Act 1993
" and substitute:
section 115 of the
Planning,
Development and Infrastructure Act 2015
27—Amendment
of section 7G—Preliminary
(1) Section 7G, definition of Development Assessment
Commission—delete the definition
(2) Section 7G, definition of Planning Minister—delete
"
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015
(3) Section 7G—after the definition of precinct plan
insert:
State Planning Commission means the State Planning Commission
established under the
Planning,
Development and Infrastructure Act 2015
.
28—Amendment
of section 7H—Establishment of precincts
(1) Section 7H(1)(d)—delete "that promotes the purposes of the
Planning Strategy" and substitute:
, having regard to any relevant provisions of a state planning policy under
the
Planning,
Development and Infrastructure Act 2015
(2) Section 7H(3)(b)—delete "the Planning Strategy" and
substitute:
any relevant provisions of a state planning policy under the
Planning,
Development and Infrastructure Act 2015
(3) Section 7H(5)—delete "Development Policy Advisory Committee" and
substitute:
State Planning Commission
(4) Section 7H—delete "Development Assessment Commission" wherever
occurring and substitute, in each case:
State Planning Commission
29—Amendment
of section 7I—Precinct plans
(1) Section 7I(2)—delete "the provisions of the Planning Strategy"
and substitute:
any relevant provisions of a state planning policy under the
Planning,
Development and Infrastructure Act 2015
(2) Section 7I(2)(f)—delete paragraph (f) and substitute:
(f) make provision in relation to any matter which the Planning and Design
Code under the
Planning,
Development and Infrastructure Act 2015
may provide for, including specifying classes of development within the
area that will be taken to be deemed-to-satisfy development for the purposes of
that Act; and
(3) Section 7I(2)(g)—delete "section 50 of the
Development
Act 1993
" and substitute:
section 185 of the
Planning,
Development and Infrastructure Act 2015
(4) Section 7I(4)—delete "the provisions of the Planning Strategy"
and substitute:
any relevant provisions of a state planning policy under the
Planning,
Development and Infrastructure Act 2015
(5) Section 7I(5)—delete subsection (5) and substitute:
(5) The precinct authority must, in preparing a precinct plan, have regard
to any relevant provisions of the Planning and Design Code.
(6) Section 7I(12) and (16)—delete "Development Assessment
Commission" wherever occurring and substitute, in each case:
State Planning Commission
(7) Section 7I(14)—delete subsection (14) and substitute:
(14) Section 70 of the
Planning,
Development and Infrastructure Act 2015
applies to the adoption or amendment of a precinct master plan as if
references in that section to an approval or amendment of a designated
instrument under Part 5 of that Act were references to the adoption or amendment
of a precinct master plan under this section.
30—Amendment
of section 7J—Certain matters to apply for the purposes of the
Planning, Development and Infrastructure Act
2015
(1) Section 7J(1)—delete subsection (1) and substitute:
(1) A relevant
authority within the meaning of the
Planning,
Development and Infrastructure Act 2015
must accept that—
(a) a proposed development in a precinct is deemed-to-satisfy development
for the purposes of that Act to the extent that the development is certified by
the precinct authority as being deemed-to-satisfy development under
section 7I(2)(f) of this Act; and
(b) a proposed
division of land in a precinct satisfies the conditions specified in
section 95(1)(c) or (d) of the
Planning,
Development and Infrastructure Act 2015
to the extent that such satisfaction is certified by the precinct
authority.
(2) Section 7J(3)—delete "Development Assessment Commission under
section 50 of the
Development
Act 1993
" and substitute:
State Planning Commission under section 185 of the
Planning,
Development and Infrastructure Act 2015
(3) Section 7J(4)(a)—delete "
Development
Act 1993
" and substitute:
Planning,
Development and Infrastructure Act 2015