Commencement of provisions within the Landscape South Australia Act

27 April 2020

One of the promises made by the current Government in 2018 was to provide “greener neighbourhoods” in South Australia. To achieve this promise the Government introduced the Landscape South Australia Act 2019 (“the Act”) to replace the Natural Resources Management Act 2004 (“NRM Act”). The Act was introduced into the Parliament in 2019 and came into operation on 19 December 2019. At the time of its commencement, many of its provisions were suspended.

The objects of the Act include to “support and enhance ecologically sustainable development by establishing an integrated scheme to promote the use and management of the natural resources that make up or contribute to our State’s landscape in an integrated manner”. One of the ways in which the Act seeks to achieve its objects is through the introduction of Regional Landscape Boards (“RL Boards”) that will replace existing NRM Boards from 1 July 2020.

Eight RL Boards are currently being established1  for the eight landscape management regions determined by the Minister (refer section 11 of the Act). The eight regions include Green Adelaide, Kangaroo Island, Hills and Fleurieu, Limestone Coast, Murraylands and Riverland, Northern and Yorke, Eyre Peninsula, Alinytjara Wilurara and South Australian Arid Lands (“the regions”). Further details and maps of the regions can be viewed  here.

The RL Boards are intended to provide for stronger local representation and to better respond to local issues relating to natural resources by the RL Boards which:

• have greater autonomy;
• are responsible for managing their own budgets and staff;
• are required to prepare regional landscape plans² that deal with issues surrounding and methods for protecting and enhancing the quality and value of natural resources within regions; and
• are required to have three members that are eligible electors in the relevant region.

To assist in the implementation of the Act and the transition from the NRM Act, a number of the suspended provisions in the Act were proclaimed in the Gazette and commenced on 9 April 2020, as follows:

Functions, powers and obligations

• section 28 – the requirement for RL Boards to establish Grassroots Grants Programs to support relevant projects, groups and organisations (not-for-profits) within each region;
• section 29 – general powers of RL Boards to perform functions and administer the Act including to enter into contracts and acquire, hold and deal with property;
• section 36 – for RL Boards to establish committees and other bodies as required by the Minister or under the Act;

• section 37 – powers of delegation and sub-delegation;
• section 41 – use of facilities. This section allows an RL Board, by arrangement with the relevant body, to make use of staff, resources and facilities of a public authority, which includes a council or a council subsidiary; and
• section 102 – the ability for RL Boards (or other prescribed authorities) to develop water affecting activities control policies with respect to the conservation, management or protection of watercourses and bodies of water.

Financial and reporting requirements

• section 38 – RL Boards must keep proper financial records and will be audited at least each financial year and at any time by the Auditor-General;
• section 39 – RL Boards must prepare and provide to the Minister an annual report before 30 November each year; and
• section 51 – RL Boards must prepare an annual business plan for each financial yea The business plan must clearly set out the contributions to be made from constituent councils.

Levy payments in respect of rateable land and water

• section 66 – contributions by constituent council This section sets out the requirements for councils to make contributions to RL Boards;
• section 69 – imposition of levy by councils. This section sets out the requirements for councils to impose a levy on rateable l This levy will be chargeable commencing as of the 2020/2021 financial year in lieu of the NRM levy;
• section 71 – the ability for a Board to declare a levy to be contributed by persons who occupy land outside of council areas;
• section 76 – the power of the Minister to declare a water levy or levies;
• section 89 – specifies where levy payments and penalties are to be paid and held; and
• section 93(3) – the landscape priorities fund which is to be kept in a separate account by Treasury – subsection (3) relates to the powers of the Minister to Gazette a percentage of contributions that is either paid or would otherwise be payable to the Green Adelaide Board, to be paid into the landscape priorities fun

Penalties for unauthorised or unlawful taking of water

• section 88 – the power of the Minister to declare a penalty in relation to unauthorised or unlawful taking of wat

Schedules

• schedule 2, clauses 1, 3 and 4 – relates to the preparation or amendment of activities control policies relating to landscapes or water by prescribed authorities that include RL Boards (refer section 33 of the Act not yet commenced) and sets out the consultation requirements for preparing or amending control policies and provides that control policies will not have effect unless approved by the Minister; and
• schedule 5, clause 95(3) to (6) – provides for the amendments, repeals and transitional provisions for the implementation of the Act. Clause 95 relates to levies and, specifically, the transitional arrangements for payment of levies during the transitional financial year, which means the 2020/2021, 2021/2022 or 2022/2023 financial years.

Many of the commencing provisions in the Act relate to the powers, functions and obligations of RL Boards that will, in accordance with their implementation, be required to develop annual business plans, financial record keeping practices and policies to ensure that each RL Board operates and functions in accordance with its requirements under the Act.

Of particular relevance for councils is the commencement of sections 66 and 69 of the Act that require councils to make contributions to RL Boards and pass the cost onto their ratepayers by way of a levy on rateable land. This means, for the 2020/2021 financial year, that:

• councils will be required to charge a levy under the Act in lieu of the NRM levy; and
• council rates notices will need to be updated to include the Landscape South Australia Act l

Clause 95(3) to (6) of schedule 5 of the Act provides transitional provisions that allow for some modification of the requirements under the Act for contributions and levies charged during a transitional financial year. For example, the annual business plan of an RL Board does not need to be consistent with a regional landscape plan insofar as that plan is a regional NRM plan that has been applied and adopted (refer clause 95(3) of schedule 1 of the Act). Whereas in a non- transitional financial year, the annual business plan of an RL Board is required to be consistent with its regional landscape plan or it will otherwise require the approval of the Minister³.

There are still a number of provisions within the Act that are to commence. We anticipate that these provisions will be proclaimed as they become required for implementation of the Act. We will continue to watch this space and keep you updated.

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

 

¹ In accordance with the implementation plan each RL Board should now have a presiding member with full membership scheduled to be finalised by May 2020.

² Sections 46 – 50 of the Act set out the requirements for preparation of regional landscape plans. These sections have not yet commenced.

³ Section 51(8) of the Act.