Pandemic Response Amendments to the Development Regulations 2008 and an Unrelated ‘Surprise’ Amendment Proclaimed on 9 April 2020
14 April 2020
Late on 9 April 2020, two sets of Regulations making variations to the Development Regulations 2008 (“the Regulations”) were Gazetted, with immediate effect, being the:
- Development (Schedule 9) Variation Regulations 2020; and
- Development (Public Health Emergency) Variation Regulations 2020.
For convenience, we have consolidated the variations into the Regulations in tracked changes formatting for ease of reference.
Our document can be found here.
We explain the amendments that affect councils below.
Pandemic ‘measures’
1. Insertion of regulation 3A – Public inspection—public health emergency
This regulation provides that wherever the Regulations require information to be made available for inspection at a principal office, that this requirement will be satisfied if the “is kept in an manner accessible to the public, or made available to the public for inspection, on a website determined by the person or body (as the case requires).”
This regulation expires on 30 September 2020
As discussed in our previous Alert, we consider that this new regulation is not necessary to allow online access to documents required to be made available for inspection.
In fact, what the new regulation achieves is to ensure that, once it expires on 30 September 2020, the legal position on documents required to be made available for inspection, is arguably that this can only occur through physical inspections at the relevant principal office.
2. Variations to regulation 5
The effect of these regulations is to amend the operation of sections 34 and 44 of the Development Act 1993 (“the Act”) from now until 30 September 2020.
In terms of section 34:
2.1 the Minister can publish a notice on the SA Planning Portal to designate classes of development where the SCAP, instead of the relevant council, is the relevant authority for the assessment and determination of a development application;
2.2 where a notice is published, any development applications of the particular class currently being assessed by councils are to be sent directly to the SCAP and the SCAP finishes the relevant assessment.
There is, at present, no notice published on the SA Planning Portal.
The Minister has made it clear however that the intent of this regulation is to ensure that development applications are ‘called in’ where they cannot be assessed or there are significant delays in their assessment due to the pandemic.
Councils must, therefore, ensure that their CAPs and RAPs continue to meet during the pandemic and that this is facilitated, where necessary, through online platforms as discussed in our previous Alert on this topic.
In terms of section 44:
2.3 Section 44(4) of the Act is modified such that:
2.3.1 conditions on development authorisations which govern loading/unloading times and opening hours for shops which primarily sell foodstuffs are not enforceable from now until 30 September 2020; and
2.3.2 the Minister can expand the ‘hold’ on conditions concerning unloading and loading goods to other forms of premises by way of a notice published on the SA Planning Portal.
2.4 As yet, there is no notice published by the Minister which relates to paragraph 2.3.2 above.
3. Amendments to regulation 12
Regulation 12 has been amended to expressly allow public meetings on Development Plan Amendments to be held “remotely by using audio-visual technology or other electronic means”. This amendment operates from now until 30 September 2020.
This amendment was required as the requirements of the Act and Regulations for public meetings on DPA do require physical meetings to be held.
We are aware of several councils who are currently undertaking DPA’s, some of whom have issued notices under regulation 11A confirming a physical location for the public meeting.
Where this has occurred, and a remote meeting is preferred, this can occur provided that the notices under regulation 11A are re-issued with details of online/remote meeting access.
4. Amendments to regulation 24
Referral response timeframes are amended such that for any referral made from 9 April 2020 until 30 September 2020, a consistent timeframe of 20 business days from the date of the referral applies to all referrals.
5. Amendments to regulation 38
From 9 April 2020 to 30 September 2020, the SCAP is not required to seek a report from a council where the SCAP is the relevant authority for a development application in the relevant council’s area.
Effect of COVID-19 Emergency Response Act 2020 on CAP and RAP meetings
Please note that section 17 of this Act is intended to ensure that CAP and RAP meetings and other meetings not otherwise captured by preceding legislation can be held electronically.
As per our previous Alert, we do not consider that any amendments are required to the Regulations to allow CAP and RAP meetings to occur electronically.
However, section 17 of the above Act removes all doubt in this regard, at least for the pandemic period.
We encourage councils to consider our opinion on this matter and to take reasonable measures to balance their overarching duties to staff, members and the public with the need to ensure that CAP and RAP meetings and other development assessment functions continue during the pandemic.
Non-pandemic amendments
6. New category 2 public notice ‘trigger’
The sole amendment not related to the pandemic is the insertion of s new clause 30 has into Schedule 9 of the Regulations.
This insertion renders development comprising or involving:
6.1 the construction of or a change of use to a shop or tourist accommodation; or
6.2 industry associated with food or beverage production, including any associated amenities or storage or other facilities,
that are not designated as category 1 forms of development, category 2 forms of development in General Farming, Primary Industry, Primary Production or Rural Zones of all Development Plans.
Please contact Victoria Shute on 08 8113 7104 or vshute@kelledyjones.com.au if you have any questions.