COVID-19 – Development (Public Health Emergency) Variation Regulations 2020
Local government planning and development assessment functions must go on. That is the clear message from the State Government.
The Government’s message has been reinforced with emergency amendments to the Development Regulations, 2008 published in the Government Gazette late this afternoon.
The COVID-19 Emergency Response Act 2020 (COVID-19 Act) was also passed by Parliament and assented to today. While the Act mainly focuses on commercial and residential leasing (and other matters), relevant to development assessment, it puts beyond doubt any argument about the ability of Assessment Panel meetings to occur by electronic means.
In this alert, we briefly explain the amendments, and how they affect development assessment under the Act.
The Development (Public Health Emergency) Variation Regulations 2020 (Variation Regulations) amend the Development Act 1993 (Act) and Development Regulations 2008 (Regulations).
While regulations cannot ordinarily amend an act, section 7 of the Act enables this to occur.
The Variation Regulations are operative from today. Most are temporary, expiring either on 30 September 2020, or the designated day (which is the earlier of 30 September 2020 or a date to be determined by the Minister).
Public Inspection of Documents
The Variation Regulations insert a new Regulation 3A into the Regulations which clarifies that until 30 September 2020, a requirement to keep prescribed information at, or to make it available for inspection at, a principal office will be satisfied if the information is kept in a manner accessible to the public, or made available to the public for inspection, on a website.
This change is relevant to (at least) regulations 34 (public notification), 98 (register of applications), 99 and 100 (registers of LMAs) and 101 (approval documents to be preserved).
This amendment is consistent with recent amendments to the Local Government Act 1999 and the regulations under that Act – and puts beyond doubt the ability of councils to ‘go fully electronic’ under the current statutory regime.
New Ministerial Call-In Power
The Variation Regulations amend the Act to incorporate a new subclause into Section 34(1)(b) (which prescribes the circumstances in which SCAP is the relevant authority for a development application).
This new subclause (xxi) provides that where a proposed development falls within a class of development designated by the Minister by notice published on the SA Planning Portal, the SCAP is the relevant authority. In effect, the Minister has been given a new call-in power.
No notice has yet been placed on the Portal. However, the Government has said that the call-in power will only be exercised where there is a clear and demonstrated delay to development applications (such as where councils have temporarily reduced or shut core functions or reduced staff numbers), and particularly where applications are of economic importance or significance.
The Variation Regulations also insert a new Section 34(1ab) which enables SCAP, upon becoming relevant authority, to ‘pick up’ where a former relevant authority has left off, in the case of an application for which assessment had already begun.
While expressed in broad language, it is anticipated that this call-in power will be used only in situations in which a council is unable to continue the assessment of one (or more) applications, or where a council is lacking capacity and requires assistance from the State.
Both the new subclause (xxi) and new Section 34(1ab) will remain in the Act until the designated day.
Council Comment to SCAP
The Variation Regulations remove councils’ abilities to provide comments to SCAP where it is the relevant authority in various circumstances via the deletion of Section 34(1a) and Regulation 38(2)(b). Section 34(1a) is removed until the designated day, and Regulation 38(2)(b) until 30 September 2020.
While the removal of these two provisions remove councils’ statutory right to provide comment, it would be permissible for SCAP to continue to request comment, particularly where councils’ planning departments are operating ‘business as usual’. Councils may also consider continuing to provide comment to SCAP, even where such comment has not been expressly sought.
The Variation Regulations amend Section 37(3)(a) of the Act and insert a new Section 37(3a) in relation to agency referrals.
The variation of Section 37(3)(a) specifies that where a referral agency has requested further information from an applicant, the time the agency should specify for a response is a maximum of 5 days. However, this is not a mandatory requirement, and Section 37(3)(b), which enables a referral agency to grant an extension of time for an applicant to respond, remains.
The inclusion of new Section 37(3a) limits a referral agency to requesting information from an applicant on one occasion only (as is the case when development assessment occurs under the Planning, Development and Infrastructure Act 2016). Having said that, there does not appear to be any prohibition on an applicant willingly providing further information, particularly if, without it, the agency would be recommending (or directing) a refusal.
Both of these amendments to Section 37 are operative until the designated day.
The final amendment to agency referrals is deletion of Regulation 24(1)(b) of the Regulations and its replacement with a new Regulation 24(1)(b). This new regulation provides that for all referrals which occur after 9 April 2020, the agency must respond within 20 business days (despite any later time period in Schedule 8). However, if an agency requests further information from an applicant pursuant to Section 37(2) of the Act, the time the agency has to respond will be extended.
Delivery of Goods
The Variation Regulations also include amendments to the Act and Regulations which were effected last month by the Development (Delivery of Goods) Variation Regulations 2020. The Minister now has an ability to expand the kinds of premises which are able to accept deliveries and load outside approved hours. Presumably, this will be used to assist pharmacies, take-away food outlets and other businesses that are providing essential goods and/or struggling for survival.
Remote Panel Meetings by Electronic Means
Section 17 of the COVID-19 Emergency Response Act 2020 (COVID-19 Act) provides that despite a provision of any other Act, a requirement that a meeting occur that requires 2 or more persons to be physically present will be taken to be satisfied if the persons meet remotely using audio visual or audio communication.
This Section means that, from today, CAPs and RAPs can conduct Panel meetings by electronic means (if they so choose), despite the provisions in Section 38 of the Act which gives Category 3 representors and applicants the right to appear before a Panel meeting in person. In effect, Section 17 of the COVID-19 Act ‘overrides’ this right.
Additional Form of Category 2 Development
The Variation Regulations insert a new Clause 30 into Schedule 9 to classify as Category 2 development within a General Farming, Primary Industry, Primary Production, or Rural Zone (except where it falls within Part 1 of Schedule 9) involving, or for the purposes of:
- the construction of , or a change of use to, a shop;
- the construction of , or a change of use to, tourist accommodation; or
- industry associated with food or beverage production,
including any associated amenities or storage or other facilities.
This clause is limited to development applications where the total amount to be applied to any work, when all stages of the development are completed, exceeds:
- $5,000,000 in Metropolitan Adelaide; or
- $3,000,000 in any other case.
The pace of change is not letting up, but it is important to remain plugged in and to keep abreast of the changes and their implications.
To assist Council planners, the LGA will be hosting a forum with Norman Waterhouse at which recent changes can be discussed in more detail, and questions can be asked. Details to follow shortly.
In the meantime, for more specific information on any of the material contained in this alert, please contact Gavin Leydon on firstname.lastname@example.org or 8210 1225, Peter Psaltis on email@example.com or 8210 1297 or Joanna Clare on firstname.lastname@example.org or 8217 1368