Alert - amendments to the Planning, Development and Infrastructure (General) Regulations 2017 and the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019 - what you need to know

31 May 2023

Following consultation processes in 2022/23, a significant number of amendments to each set of Regulations were Gazetted to commence on 26 May 2023.

This Alert summarises the key amendments as they affect development application and accreditation matters for local government planners and building surveyors.

Planning, Development and Infrastructure (General) Regulations 2017

 Requests for further information

Regulation 34(1) – a relevant authority cannot extend the time in which an applicant is allowed to respond to a request for further information for more than 1 year from the date of the request.

Previously, where an RFI was not responded to within 1 year after issue, the assessment ‘clock’ would recommence. However, the applicant and relevant authority could agree that an application would not be determined by way of refusal or deemed consent, pending a response to the RFI being provided at a later time.  The amendment to regulation 34(1) prevents such informal agreements from being reached.

 Amended applications

Regulation 35(1) – to clarify that where an application is varied and the variations are substantial, not only does the assessment ‘clock’ reset, but the assessment timeframe provided will include representation and referral timeframes.

Certification of building indemnity insurance

Regulation 36(2) – the obligation to obtain building indemnity insurance is imposed on the applicant for building consent for domestic building work, not the owner.  This means that, for many development applications, builders will be responsible for providing certificates to the relevant authority and/or council at the required time.

 Minor variations

Regulation 65 – where an applicant requests the variation of a condition of an existing development authorisation, the relevant authority is the same as that which issued the existing development authorisation.

The exception is where the existing development authorisation was granted by the SCAP and relates to completed building work and a certificate of occupancy was issued.  For minor variations to such planning consents, the relevant authority is the Assessment Manager for the CAP or RAP established in the area.  For building consents, the relevant authority is the Council.

Where the relevant authority for the original application was an accredited professional and they are unable to act for the variation, the relevant authority is the Assessment Manager for the CAP or RAP established in the area for a planning consent variation or the council for a building consent.

CWMS contributions

Regulations 79 and 85 – water industry entities under the Water Industry Act 2012 other than SA Water can now specify their water and sewer requirements for land division applications under sections 102(1)(c)(iii) and 102(1)(d)(vii) of the PDI Act.

This means that where councils operate CWMS and/or water supplies, they are now able to specify what their connection and other applicable fees are and land division consent conditions requiring payment thereof prior to the issue of a land division clearance certificate under section 138 of the PDI Act, can be imposed – a process which has only been available to SA Water until now.

Panel review of Assessment Manager decisions

Regulation 116 – where an applicant has sought an assessment panel review of an Assessment Manager decision, they must be given an opportunity to provide submissions on the review and provided with opportunity to appear and make submissions at the relevant panel meeting.

Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019

Regulation 6(aa) – persons who are Accredited professionals – planning level 1, may undertake any functions, powers or duties that Accredited professional – planning levels 2, 3 or 4 can perform.  This removes the need for a level 1 to hold multiple accreditations at different levels, also removing the need to undertake more than 20 CPD units each year.

Regulation 8(aa) – persons who are Accredited professionals – planning level 3 are able to undertake the functions, powers or duties of an Accredited professional – planning level 2.  Again, this removes the need for multiple accreditations to be held for planners at level 3 who may also wish to be appointed as an assessment panel member.

Regulation 19 –

• to require that applications for continuation of accreditation be made at least 14 days before the anniversary date, rather than the previous 28 days;
• confirms that continuations are tied to the anniversary date of the original grant of accreditation, regardless of whether a renewal is granted before or after the anniversary date;
• provides for the ability for an accredited professional to nominate a different date for approval by the accreditation authority, provided that this date is earlier than the anniversary date; and
• to require that notice of a decision on an accreditation application be provided to applicants and, where an application is refused, that reasons for the refusal are given and that review rights are confirmed in the notice.

Regulation 19A – inserted to provide accredited professionals with the ability to apply for extensions to their accreditation.  Applications must be made at least 14 days before the anniversary date or, during the 14-day period at the discretion of the accreditation authority.  Extensions can be granted for 3 months and where the accreditation authority is satisfied that it is appropriate to do so:

• due to the accredited professional—

• being pregnant or taking leave from work due to the birth of a child; or
• being seriously ill or severely disabled; or
• being required to care for a member of their immediate family for an extended period of time; or
• being under severe financial stress; or
  • on the basis of other exceptional circumstances of which the accredited professional has provided sufficient evidence.

Regulation 30(2) – amended to specify that an officer or employee of a council is not committing an offence where they assessing or determining a development application submitted by a council.

CPD requirements have been amended so that an Accredited professional – planning level 1 is only required to complete 1 ethics in planning CPD unit each year, instead of the previous 2 units.  This amendment applies to any CPD period which has commenced but not ended at 26 May 2023.

Please call Victoria Shute on 08 8113 7104 or email vshute@kelledyjones.com.au