In response to the unprecedented public health crisis that is COVID-19, the State Government has not hesitated to bring forth variations to the Local Government Act 1999 (LG Act) and both the Development Act 1993 (Development Act) and Development Regulations 2008 (Development Regulations) to support the continued operation of Councils and their decision-making across the South Australia.
Below is a snapshot of some of the legislation the State Government has pushed through in the past few weeks.
Section 302B of the Local Government Act 1999 (and Notices)
On 26 March, a new section 302B was inserted into the Local Government Act 1999 by the Local Government (Public Health Emergency) Amendment Act 2020. New section 302B provides the Minister for Transport, Infrastructure and Local Government with powers to temporarily vary or suspend the operation of certain provisions of the LG Act if a declaration has been made in relation to a public health emergency, and he is satisfied that such amendments are reasonably necessary as a result. Such powers are triggered by a notice (or notices) being gazetted by the Minister.
Since the commencement of section 302B, Minister Knoll has issued two such notices:
- Electronic Participation in Council Meetings Notice (No. 1) 2020, which amends various provisions in the LG Act and the Local Government (Procedures at Meetings) Regulations 2013 to permit Council meetings to be held electronically; and
- Public Access and Public Consultation Notice (No. 2) 2020, which amends various provisions of the LG Act to permit Councils to close their offices to the public (or keep them partly open if they choose), if they are satisfied that that it is reasonably necessary as a result of a public health emergency. Notice No. 2 also permits the Councils to make documents which would otherwise be available at the Council office, available online, and absolves the need for mandatory public meetings to take place as a part of public consultation requirements required by certain provisions of the LG Act. Councils can amend their public consultation policy to cater, without having to undertake the required public notification.
Amendments to the Development Act and the Development Regulations
Last Thursday, 9 April, the following pieces of legislation came into effect:
- Development (Public Health Emergency) Variation Regulations 2020 (Emergency Regulations), containing provisions which amend, for a temporary period, the Development Act and the Development Regulations; and
- COVID-19 Emergency Response Act 2020 (C19 Act), which, while primarily covering leasing issues, includes section 17 which confirms that despite any other Act or law, any meeting or transaction which requires 2 or more people to be physically present, can take place remotely by audio visual, audio or other means.
The Emergency Regulations
The State Government confirms that the Emergency Regulations, and especially the broadening of the Minister’s ‘call-in’ powers (referred to below), have been brought in in response to recognised delays in planning assessment at local government level as a result of reduced Council function and limited resourcing, during the COVID-19 period. The amendments include the following:
1. Electronic information
A new regulation 3A in the Development Regulations, which confirms that any requirement to keep ‘prescribed information’ (being ‘a document, register or any other informational material’) available for inspection under the Regulations will be taken to have been satisfied if such information is available on a nominated website. This will remain in force until 30 September 2020.
2. Additional Ministerial Call-In
- A new subparagraph (xii) in section 34(1)(b) of the Development Act, which provides that, when a proposed development falls within a class of development designated by the Minister by a notice published in the SA planning portal, the State Planning Commission (Commission) (through the State Commission Assessment Panel (SCAP)) will become the relevant authority in relation to that application.
- A new section 34(1ab) in the Development Act, which states that if the Minister does publish such a notice, the Commission, in acting as the relevant authority, may do either or both of the following:
- adopt any assessment, finding or determination that was made by the former relevant authority; or
- continue to assess the proposed development from the stage reached immediately before the Minister called-in the proposal.
These additions will remain in effect until the ‘designated day’ (defined as the earlier of the day that the Minister designates by notice in the Gazette or the 30 September 2020).
As at this date, the Minister has not listed a notice on the SA planning portal. In a State Government Media Release circulated last Thursday, it was noted that “the Minister’s powers will only be exercised where there is a clear and demonstrated delay to development applications, particularly where applications are of economic importance or significance.”
Amendments to section 37 of the Development Act such that:
- Where a referral agency has requested further information from an applicant for development, the time the agency should specify for response be a maximum of five business days; and
- A referral agency can only request information from an applicant on one occasion (albeit more information can still be provided by the applicant as it sees fit and which it may wish to offer if the referral agency is not in favour of its proposal).
These amendments are in force until the ‘designated day’.
The existing regulation 24(1)(b) of the Development Regulations is also replaced with a new regulation 24(1)(b) which requires that, in relation to all referrals which occur after 9 April 2020, the agency response must be made within 20 business days (irrespective of Schedule 8 of those Regulations).
4. Operating hours for retail
A new section 44(4a) into the Development Act which permits a person operating a shop used primarily for the retail sale of foodstuffs from loading or unloading goods at any time or opening at any time (irrespective of any conditions which may attach to their consents which outline restrictions in relation to same). This new section also provides the Minister with the discretion to include other types of premises which may load and unload at any time.
5. Public meetings
- A new subregulation (5) in regulation 12 of the Development Regulations, which permits the convening of a public meeting in relation to a Development Plan Amendment process under sections 25 and 26 of the Act, to be undertaken electronically;
- New subregulations (2a) and (2b) in regulation 63C of the Regulations, which confirms that nothing prevents a public meeting in relation to the Environment Impact Statement process for Major Developments, to be undertaken electronically; and
- New subregulations (2a) and (2b) in regulation 63D, which confirms that nothing prevents a public meeting in relation to the Public Environment Report process for Major Developments, to be undertaken electronically.
These amendments will each expire on 30 September 2020.
It is worth reiterating the impact of new section 17 of the C19 Act, here: as mentioned above, this new section permits any meeting or transaction, which would otherwise require parties to be physically present, to be undertaken electronically. Unlike the amendments to the LG Act in this regard, which only permit meetings of Council under the LG Act to take place in this way, section 17 ensures that development assessment panels (including CAPs) may now conduct their meetings wholly electronically, despite the limitations of section 38 of the Development Act in this regard.
6. SCAP to receive Council comments
A new subregulation (5a) in regulation 38 of the Development Regulations, which deletes the requirement for the SCAP to receive Council’s comments on a development application, in circumstances when the SCAP is the relevant authority pursuant to section 34(1)(b) of the Act (because the proposed development is of a class provided for in Schedule 10 of the Regulations). Whilst the SCAP is no longer legally required to accept a report from a Council pursuant to this amendment, the SCAP may still seek such a report if it wishes and a Council is not prevented from providing it in any case.
It is clear that the State Government is doing all it can to offset the impacts of COVID-19 on the continued operation of local government and the process of development assessment in SA. Whilst it must be kept in mind that the above amendments are temporary, it will be interesting to see whether the efficiencies felt as a result of these amendments, will be sought for the longer term once the impacts of COVID-19 have passed. If successful in practice, many of the amendments may feed nicely into the proposed eplanning system, one of the central tenets of SA’s up-coming new planning reform. For now, such amendments, temporary or otherwise, are highly supported.
This article was written by Emma Herriman, Partner.