PDI Bill Update

1 December 2015

The Bill has been passed by the House of Assembly and is onto the Legislative Council – but in what form?

As has been widely reported, the PDI Bill passed the House of Assembly on Tuesday 17 November, with amendments.

We confirm the amendments made, and their effect, below:

Planning policy and development assessment provisions

1. minor typographical errors and cross-references have been rectified;

2. the definition of “adjacent land” in clause 3 has been amended to mean “land that is no more than 60 metres” from other land; (as opposed to 40 metres)

3. clause 4(1)(d) has been amended to make it clear that a change in land use will arise where an increase in the intensity of the use of the land prescribed by the Planning and Design Code (“the Code”) as constituting a material increase in use occurs.  This amendment cures ambiguities which existed in the original drafting of this clause which may have resulted in the question of what constitutes a “material” increase in intensity being a matter of opinion, rather than something clearly prescribed by the Code;

4. a new clause 4(4) has been added so as to provide that the resumption of an activity, will constitute a change in land use where the activity, on its resumption, would be inconsistent with a zoning policy that applies to the relevant land and where the period of cessation exceeds 12 months or such longer period allowed by the Code.

The effect of this clause is that where an individual activity ceases and is then resumed, this may constitute “development” requiring approval, regardless of whether the overall land use of which the activity is a part is continuing or not.

For instance, take the example of an integrated development comprising a petrol filling station, shop and car wash.  If the car wash activity was to cease for 12 months or more, but the remainder of the development continued to operate, the resumption of the car wash use could constitute “development” in and of itself;

5. clause 7, which governs environment and food production areas has been amended to ensure that such areas are reviewed by the State Planning Commission (“the Commission”) every 5 years.  The focus of such reviews is to:

“assess whether adequate provision exists outside environment and food production areas to accommodate housing and employment growth over the longer term (being at least a 15 year period) in a manner that avoids undue upward pressure on the cost of housing, transport and other services” (see clause 7(9)).

Where the Commission is satisfied that provision to accommodate housing growth in a manner that avoids undue upward pressure on the cost of housing, transport and other services, and that the provision of housing growth cannot be reasonably achieved through urban renewal and the consolidation of existing housing areas (see clause 7(10)), the Commission may make a recommendation to the Minister to vary or abolish an existing environment and food production area and the Minister may act on this recommendation (see clause 7(6));

The provision has also been amended such that the Minister cannot unilaterally vary or abolish an environment and food production area. The Minister must now seek the advice of the Commission, or be acting under on the advice of the Commission after a 5 year review.

6. the Commission is required to establish 1 or more committees in relation to its functions and powers as a relevant authority – known as “Commission assessment panels” – and must delegate its powers and functions as a relevant authority with respect to determining whether or not to grant planning consent to either such a panel, another form of assessment panel (including a council assessment panel) or to an officer of the Commission (see clauses 29 and 30).

The effect of this is that the Commission cannot itself determine applications for planning consent but, similar to the manner in which councils currently delegate their development plan consent functions and powers must delegate those functions and powers to panels and/or to its officers;

7. a new clause 46 exists requiring the Minister to refer the Community Engagement Charter to the ERD Committee of Parliament within 28 days of adopting the Charter, or in the case of any amendments to the Charter;

8. clause 56, which provides for principles which must be taken into account whenever the State planning policies, regional plans, the Planning and Design Code and design standards are created and/or amended, has been amended to:

8.1 expressly require that deemed to satisfy requirements of the Planning and Design Code must provide for various ways in which those requirements can be met; and

8.2 ensure that where an inconsistency exists between the Planning Rules and the Building Rules while the Building Rules prevail to the extent of and inconsistency this cannot operate to negate the need to obtain planning consent for a change in land use;

9. changes to a State planning policy, regional plan, the Planning and Design Code and design standards can be initiated by a scheme coordinator responsible for an essential infrastructure delivery scheme initiated by the Minister under Part 13 of the Bill (see clause 70(2)(vii);

10. the Minister will be able to make minor or operational amendments to State planning policy, regional plan, the Planning and Design Code and design standards without public consultation being required in order to address inconsistencies between any of those documents and the creation of an environment and food production area (see clause 73(2)(c));

11. clause 96 of the Bill has been amended to clarify that only encroachments over public land can be approved by way of a development approval.  This means that where such an encroachment is proposed over private land, the owner of the land can take action to remove the encroachment under the Encroachments Act 1944.  Where an encroachment is approved over council land through a development approval, the council cannot object to the encroachment, it can impose a reasonable charge when the relevant development is undertaken.

These amendments leave the onus on identifying approved encroachments upon a council and do not clarify whether the charge imposed is a one-off charge or whether an annual charge can be imposed.  Clause 96(11), could be read as only allowing a single, one-off charge, rather than an annual charge;

12. clause 104 of the Bill, which governs the assessment of restricted developments, has been amended so that where a delegate of the Commission refuses a restricted development without proceeding to a full assessment of the development, that decision is reviewable by the Commission itself.  The decision of the Commission on a review is not appealable to the ERD Court.

Essential infrastructure delivery schemes

Significant amendments have been made to the provisions which govern the Ministerial powers concerning essential infrastructure delivery schemes under Part 13 of the Bill:

13. the purposes for which an essential infrastructure delivery scheme may be established by the Minister now exist in clause 156(2) of the Bill.  These purposes are stated to be:

(a) to facilitate development or urban renewal of a significant nature by providing a scheme that supports and advances the provision of infrastructure;

(b) to provide a mechanism for the equitable distribution and apportionment of the costs of essential infrastructure;

(c) to assist in the augmentation of capital available to fund essential infrastructure;

(d) to provide an incentive for the provision of essential infrastructure (including through private sector investment) by providing certainty through the establishment of the scheme;

14. where the Minister establishes an essential infrastructure delivery scheme, and contributions to that scheme from councils are to be considered, the Minister must now take into account:

(a) the extent to which it is reasonable that other sources of funding be used instead; and

(b) the extent to which the relevant infrastructure will provide a direct benefit to—

(i) the development potential, capacity, use, value and amenity of the land that would be expected to be included within a relevant contribution area; and

(ii) without limiting subparagraph (i), people who might be required to make contributions; and

(c)  any schemes or arrangements (including with respect to the imposition of separate or other rates or charges) that are already in place, or are already planned (and known to the Minister), with respect to the provision of infrastructure or the undertaking of works in the area (or in an adjacent or related area) (see clause 156(5));

15. further, the Minister must also consult with the owners of any land that would be affected by any infrastructure or works to be provided or undertaken under a proposed essential infrastructure delivery scheme before the draft outline for the scheme is published (see clause 156(7));

16. when funding arrangements for an essential infrastructure delivery scheme are developed, the following must be considered by the scheme coordinator pursuant to clause 158(2):

(a) the contributions should be limited to recovering the reasonable capital costs of the scheme based only on infrastructure that is not excessive and that is not produced or delivered at a cost or price that is unreasonable in the circumstances;

(b) the contributions should not have an excessive impact on—

(i) housing or living affordability within a contribution area; or

(ii) the economic viability of a contribution area;

(c) funding under the scheme—

(i) may, as appropriate—

(A) seek to attribute costs over the lifetime of the relevant infrastructure (or over some other appropriate period); or

(B) be based on contributions that become payable on a specified event or events; and

(ii) should recognise the need to provide value for money in connection with funding arrangements including, as appropriate, through the contestable provision of infrastructure;

(d) augmentation charges should be shared between beneficiaries in proportion to the benefits that they receive;

(e) rebates for contributions should be available in appropriate circumstances.

17. clause 158(3) has been inserted such that the “events” which will trigger the payment of contributions are those which are related to when a benefit will accrue to land, or to persons within a contribution area including through the division of land, a change to the Code or to a development approval;

18. clause 160 has also been amended to expressly provide that a scheme coordinator for an essential services delivery scheme is responsible for providing advice to the Minister on the recovery of contributions to the scheme;

19. funding arrangements for infrastructure delivery schemes are set out under clause 161 and:

19.1 are now subject to periodic review by ECOSA (clause 160(2)(a));

19.2 cannot be approved unless consistent with a practice direction issued by the Commission, or it has been approved by a certain percentage of persons as prescribed by regulations within the relevant contribution area; and

19.3 are now subject to full scrutiny by the ERD Committee of Parliament;

20. clause 176 has been amended so that a person who is proposing to enter residential land to carry out infrastructure works is required to give notice of this to the owner of the land in accordance with the regulations, and must make every reasonable effort to comply with any reasonable request made by the owner of the land in this regard;

21. the ability of the Chief Executive of the Department to step-in and take over the delivery of major infrastructure projects has been amended to ensure that approval to do so is required from not only the Minister administering the Bill, but any other Minister responsible for a State agency that has a direct interest in the matter (see clause 179);

Off-setting contributions

22. clause 185 which enables the Minister, or a joint planning board or council with the approval of the Minister, to establish an off-setting scheme has been amended such that where a scheme has been established by the Minister, or a JPB and not a council, that in-kind or financial contributions can be required and provided to a council;

23. further, this clause has been amended such that variations can be made to off-setting schemes, therefore avoiding the need to revoke and re-establish such schemes to achieve variations;

Enforcement and compliance provisions

24. clause 211 has been amended to allow councils (as specified by the Court) to enforce adverse publicity orders which they obtain from the ERD Court;

25. clause 213 has been amended to allow councils to procure the payment of civil penalties, but only where they have first obtained authorisation from the Commission to do so;

26. clause 217 has been amended to allow the ERD Court to make Orders requiring the payment of economic benefits derived from a contravention of the Bill to a council, but where such orders are made, the council must pay the amount obtained into its open space fund;

27. clause 218 has been amended to allow councils to procure and enforce enforceable voluntary undertakings, but only where they have first obtained authorisation from the Commission to do so;

Miscellaneous provisions

28. a new clause 229 has been inserted to clarify that the Minister may delegate his or her functions and powers to a delegate;

29. clause 1 of Schedule 3 has been amended to allow for the creation of a code of conduct for scheme coordinators for essential infrastructure delivery schemes.

If you have any questions please contact Victoria Shute on 8113 7104 or vshute@kelledyjones.com.au orTracy Riddle on 8113 7106 or triddle@kelledyjones.com.au.