Just in time — numerous legislative changes made ahead of tomorrow’s full and final implementation of the Planning, Development and Infrastructure Act 2016

18 March 2021

Today’s Gazette contains numerous amendments to legislation which relies upon the Development Act 1993 for definitions, obligations and other matters. In the main, these are matters relevant to property, governance and rating officers.

In addition, there are Gazetted amendments to the Planning, Development and Infrastructure (General) Regulations 2017 relevant for development officers.

We summarise each of these amendments below.

Differential rates – Local Government (General) Regulations 2013
  • The Local Government (General) (Differentiating Factors) Variation Regulations 2021 have commenced with immediate effect.
  • Regulation 14 has been amended so that differentiating factors will ‘work’ for rating declarations made for the 2021/2022 financial year and beyond.
  • In particular:
    • references to the Development Regulations have been replaced with “a prescribed instrument”;
    • prescribed instrument” is defined to include both the Development Regulations 2008 and the Planning and Design Code under the Planning, Development and Infrastructure Act 2016. This amendment ensures that differentiating factors, premised on land use definitions under the Development Regulations, are preserved as well as allowing differential rates to be declared for land uses defined under the Planning and Design Code from hereon; and
    • the definition of “zone” in regulation 14(3) has been amended to include areas defined as zones or subzones by the Planning and Design Code, meaning that differentiation by zones and subzones can now (without doubt) occur for the 2021/2022 financial year.
Section 7 searches – Land and Business (Sale and Conveyancing) Regulations 2010
  • The Land and Business (Sale and Conveyancing) (Planning, Development and Infrastructure) Variation Regulations 2021 commence operation tomorrow.
  • These regulations vary requirements for council search certificates so that, in addition to information required to be provided under the Development Act 1993, the following information under the Planning, Development and Infrastructure Act 2016 must be disclosed:
    • details of the relevant zone, subzone and applicable overlays under the Planning and Design Code must be disclosed;
    • Code amendments for the Planning and Design Code must be disclosed;
    • State and local heritage information must continue to be disclosed;
    • significant trees declared in the Planning and Design Code must be disclosed;
    • conditions applicable to development authorisations;
    • notices and orders under sections 139, 140, 141, 142, 155, 157, 213 and 214;
    • land management agreements under sections 192 or 193; and
    • agreements under section 198(2) to vest land in the council as open space.
  • Additionally, vendors will have to notify purchasers (and councils will need to provide information where requested) if buildings on the subject land:
    • have been identified by the SA Cladding Audit as having ACP cladding installed on their exterior; and
    • constitute a moderate, high or extreme risk as a result of that installation; and
    • require remediation to reduce the risk to an acceptable level; and
    • have not had the necessary remedial work performed or are not subject to a determination by the relevant council building fire safety committee under section 157 that no further action is required.
Site contamination – Planning, Development and Infrastructure (General) Regulations 2017
  • The Planning, Development and Infrastructure (General) (Site Contamination) Variation Regulations 2021 also commence tomorrow.
  • These regulations:
    • through the new clause 2A of Schedule 8, require development applications proposing a change in land use to or land division for a “more sensitive use” to be accompanied by a site contamination declaration form, a preliminary site investigation report, a copy of the certificate of title for the subject land and any site contamination audit report prepared in relation to the land;
    • the term “more sensitive use” will be defined in Practice Direction 14 which is Gazetted to commence operation tomorrow. The draft PD is currently available for viewing on PlanSA;
    • for the abovementioned development applications, prevent the issue of a certificate of occupancy or, where a certificate of occupancy is not required, the occupation of a building until such time as a statement of site suitability is issued which certifies that the required remediation has been undertaken and the site is suitable for its intended use.
Practice Directions

Practice Directions 3, 11 and 12 will all be varied tomorrow.

A further, new Practice Direction, Practice Direction 15 (Building Envelope Plans) 2021 which relates to the new regulation 19A which we reported on previously, will commence operation.

We will provide a further Alert on the contents of these Practice Directions shortly.

If you have any questions, please contact: