An avalanche of proclamations, legislative amendments and notices in preparation for Phase 3 of the Planning and Design Code

10 March 2021

It is official!

Phase 3 of the Planning and Design Code (“the Code”) will commence on 19 March 2021.

Through a series of proclamations, variation Regulations and notices published in the Gazette on Thursday 4 March 2021, the date of commencement for the Code together with a series of legislative and Code amendments were announced, paving the way for full transition to the Planning, Development and Infrastructure Act 2016 (“PDI Act”) and the Code on 19 March 2021.

Many of the amendments are for purposes of consistency, for example, to update references to the Development Act 1993 (“the Development Act”) in legislation to now reference the PDI Act.

However, there are a number of important amendments which provide clarity in matters and will assist in transitioning to the new planning system for Phase 3 councils.

Summary – key legislative amendments to the PDI Act and associated Regulations

1.         For the purposes of Clause 8 of Schedule 8 in the PDI Act, 19 March 2021 is the designated day for the purpose of clauses 9, 14, 17, 27 and 38 in Schedule 8 of the PDI Act – the key provisions that are needed for the commencement of Phase 3.

2.         A number of provisions in the Statutes Amendment (Planning, Development and Infrastructure) Act 2017 come into operation on 19 March 2021, the purpose of which is to amend various Acts to remove reference to the Development Act and to include references to and/or to ensure consistency with the PDI Act.

3.              By way of the Planning, Development and Infrastructure (General) (Phase 3 of Code) Variation Regulations 2021, the following amendments to the Planning, Development and Infrastructure (General) Regulations 2017 (“PDI Regulations”) come into operation on 19 March 2021:

3.1          amendment to regulation 3A, to reflect the designated day, 19 March 2021;

3.2          insertion of regulation 19A that, insofar as land divisions in council areas is concerned, allows the assessment manager to approve a building envelope plan so that it forms part of a land division consent (rather than just being an indicative plan), provided that the plan is consistent with the criteria set out in a practice direction issued by the State Planning Commission;

3.3          variation of regulation 27 to include wind farms located in marine waters and marina of more than 100 berths, as impact assessed development – the first forms of developments to be prescribed as such by regulation.  These forms of development are not restricted development and are subject to the Ministerial assessment processes in sections 111-115 of the PDI Act;

3.4          deletion of sub-regulation (3) in regulation 31 in relation to verification of applications which means that, whenever a council is the relevant authority for development applications seeking building rules consent and/or development approval, it must verify the application before undertaking its assessment;

3.5          variation of regulation 53 regarding the time within which a decision must be made (section 125(1)) that provides for an additional period of time to determine an application will be provided in the event of a PlanSA outage;

3.6          insertion of additional wording to regulation 67(1) regarding lapse of consents or approvals to include “or any extensions granted under section 126(3) of the PDI Act” to clarify that where an extension has been granted, the lapse date for a development authorisation may be longer than the standard 2 years/3 years provided;

3.7          an insertion to regulation 103(1) that clarifies that certificates of occupancy for Class 1a buildings will not be required where the building work is approved under the Development Act before 19 March 2021 and the building work is to be completed after 19 March 2021;

3.8          deletion of the words “and address” from regulation 120(1)(b) and (2)(a) meaning that applicant(s) addresses do not need to be registered on PlanSA and accredited professionals do not need to keep applicant address details in their register;

3.9          variations to Schedule 4 to exclude the following forms of development from requiring development approval under the PDI Act:

3.9.1       a shade sail that does not exceed 5 metres in height in a Recreation Zone;

3.9.2     the repair or maintenance of a jetty or boat or landing facility and associated pontoons, provided that there is no increase in the size of the jetty, facility or pontoons;

3.9.3     a fence in the Historic Area Overlay under the Code subject to meeting the specified requirements;

3.9.4     a dog fence established under the Dog Fence Act 1946; and

3.9.5     the keeping of native animals pursuant to a permit for the rescue or rehabilitation of the animals under the National Parks and Wildlife Act 1972 if it is ancillary to the primary use of the land;

3.10      inclusions and amendments to Schedule 8 regarding the plans and documents required to be submitted for a development application, to include:

3.10.1  for those developments that fall within clause 1, details of soft landscaping and percentage of site pervious to water;

3.10.2  for those developments that fall within clause 2:

(a)       stormwater connection details from roof to tank and proportion of water tanks to be used for retention or detention;

(b)       minimum and maximum driveway widths and location of street furniture, infrastructure and trees within the road reserve;

(c)       location and species of trees to be planted and trees to be retained;

(d)       reports and written statements regarding site contamination, where required and in accordance with the practice directions; and

(e)       wastewater management details.

3.11      inclusions and amendments to Schedule 9 regarding referrals including referral requirements in relation to site contamination, the Gas and Liquid Petroleum Pipelines Overlay and Gas and Liquid Petroleum Pipelines (Facilities) Overlay in the Code; and

3.12    amendment to Schedule 13 regarding State agency development exempt from approval.

4.         Amendments to the Planning, Development and Infrastructure (Fees, Charges and Contributions) Regulations 2019 that come into operation on 19 March 2021, including:

4.1      variation of regulation 4 for fees payable in respect to development comprising more than one element. The amendment confirms that a fee is not payable for each element;

4.2      variation of regulation 13 for development to be assessed by an accredited professional to clarify the fees payable at lodgement; and

4.3      variations to the fees in Schedule 1 including to clarify that where a Class 1 building under the Building Code comprises multiple dwellings, a compliance fee of $240 is payable per dwelling.

5.         Variations to the Planning, Development and Infrastructure (Swimming Pool Safety) Regulations 2019 that come into operation on 19 March 2021, which clarify that temporary fencing may be installed once a swimming pool is filled, that this meets the requirements of the regulations and that temporary fencing may remain in place until 2 months after the construction of the swimming pool is complete.

6.         Variation to the Planning, Development and Infrastructure (General) Regulations 2017 that came into operation on 4 March 2021 including:

6.1      insertion of section 26A that confirms development within the ambit of schedule 6A will be classified as accepted development for the purposes of section 104 of the PDI Act; and

6.2      the insertion of Schedule 6A which designated horticultural netting as a form of accepted development subject to meeting the relevant requirements of the Schedule.

The requirements for horticultural netting are similar to those set out in clause 17 of Schedule 1A of the Development Regulations 2008 (“the Development Regulations”).

We note that there was also an amendment to clause 17(4)(b) of Schedule 1A to the Development Regulations to delete the reference to the Hills Face Zone. This amendment also takes effect from 4 March 2021.

Amendments to the Code

A number of amendments to the Code were also Gazetted and will come into operation upon being published on the SA Planning Portal, including:

7.         changes to the definition of a ‘Retail Fuel Outlet’ in PART 7—Land Use Definitions.  The new definition inserts the following words between paragraphs (b) and (c) of the definition:

both are operated and constitute one integrated facility where on-site facilities, systems and processes, care parking and access and egress are all shared.

The use may also include one or more of the following secondary activities

The intent of this amendment is to clarify that the activities in (a) and (b) are the primary activities for this use and that activities in paragraphs (c) – (h) must occur together with and secondary to the primary activities.  This amendment ensures clarity where some but not all activities in (c) – (h) are proposed.  Unfortunately the new definition inserts a typographical error as “car parking” will become “care parking”!  We are confident however that this error will soon be amended and, in the overall circumstances of the definition, it will not have any substantive detrimental effects before it is corrected;

8.          the application of policies in relation to siting, asset protection and water supply for assessing residential development in areas subject to the Hazard (Bushfire—Regional) Overlay across all applicable Zones; and

9.         updates to legislation references and links to reference PDI Regulations and the current version of SAPPA.

If you have any questions, please contact:

Victoria Shute on 08 8113 7104 or