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Everyone is talking about it – but are you across the detail? Our detailed overview of the proposed amendments to and implementation of the Planning Development and Infrastructure Act 2016 (September 26th, 2016)

The Statutes Amendment (Planning, Development and Infrastructure) Bill 2016 (“the Bill”), which was introduced into Parliament last week, not only sets out how the PDI Act will be implemented but also makes some important amendments to the PDI Act and consequential amendments to a number of other Acts.

We provide a detailed summary of the proposed amendments to the PDI Act and the key transitional provisions below.

Amendments to the PDI Act

The Bill proposes several amendments to the provisions of the PDI Act relating to State planning policies with the effect that (if passed) the role of the State Planning Commission will be decreased and the powers of the Minister increased in this regard.

Amendments are proposed to sections 58, 59, 60, 73 and 78 of the PDI Act.

Under the proposed amendments:

  • the Commission is to prepare state planning policies on behalf of the Minister rather than in its own right;
  • a state planning policy may include any matter considered appropriate or contemplated by the Minister (previously the Commission);
  • the Minister (previously the Commission) must ensure there is a design quality policy and an integrated planning policy in place;
  • the Minister (previously the Commission after seeking advice of the Minister) may establish a state planning policy with respect to special legislative schemes; and
  • the Minister (previously the Commission after seeking advice of the Minister) may amend a state planning policy.

In the second reading speech for the Bill, the Minister for Planning explained these amendments as being necessary “to clarify that the responsibility for and ownership of state planning policy rests, ultimately, with the Minister for Planning and government of the day, notwithstanding that their policies will be informed by the commission and its consultations.”

Transitional provisions

The Bill proposes to insert a new Schedule 8 into the PDI Act which will govern the timing of its implementation and the associated repeal of the Development Act 1993.

The commencement date for the PDI Act is still, as yet, unknown. There will be a series of commencement dates appointed by proclamation, presumably once the Bill is passed and receives Parliamentary assent.

The key transition provisions are detailed below.

Change of use of land – Schedule 8 clause 4 (section 4 of the PDI Act and section 6 of the Development Act).

The new regime for changes in land use after periods of discontinuance and increases in the intensity of the use of land are governed in this provision and will operate as follows:

  • increases in intensity of use will not operate retrospectively, for an increase in the intensity of a use to constitute “development” requiring approval, the increase must occur after the proclamation of section 4 of the PDI Act;
  • where a use of land was discontinued prior to the proclamation of section 4 of the PDI Act, a period of 2 years must pass before the resumption of the use constitutes “development”. If a use is discontinued after the proclamation of section 4, the resumption of the use after 12 months may constitute “development”;
  • notices concerning the cessation of a use issued under the Development Act and related appeals will continue to operate under the PDI Act and will remain governed by the provisions of the Development Act;
  • in relation to the resumption of ceased activities that may constitute “development” under sections 4(3) and 4(4) of the PDI Act, the Governor will be able to make proclamations designating particular areas and particular activities in respect of which these provisions will apply.  This will ensure that these provisions can operate prior to the establishment of the Planning and Design Code.

State Planning Commission – Schedule 8, clauses 5 and 6

  • The provisions relating to the State Planning Commission (sections 17 – 34) will commence on 1 April 2017 with the effect that the Commission will be established on that day (although this date could change by proclamation to a day before or after this date).
  • The Minister may adopt a Code of Conduct for members of the Commission on this day.
  • After the Commission is established it has six months within which to establish the first Community Engagement Charter under section 44 of the PDI Act.
  • The Commission, once established, will assume the functions, powers and duties of the Development Assessment Commission, the Building Rules Assessment Commission and the Development Policy Advisory Committee and it will be able to exercise the powers and functions of those bodies, as required, under the Development Act.
  • The Commission is required to delegate its functions as a relevant authority with respect to determining whether to grant development plan consent to 1 or more committees to be established by the Commission or to a person.

Regions – Schedule 8, clause 7

  • Whenever a planning region is created under section 5 of the PDI Act, a corresponding regional plan does not need to be prepared and adopted until two years after the planning region is created.
  • Until a regional plan is adopted, a regional plan in place under the Development Act will apply in relation to the planning region.
  • This provision suggests that the initial regions under the PDI Act will be those which exist at present; amplifying the importance for regions to instigate planning agreements to form joint planning boards in order to create different regions from those which exist presently.

Land divisions approved under the Development Act – Schedule 8, clause 8

  • Land divisions creating 1 or more additional allotments in an environment and food production area granted under the Development Act before the commencement of the PDI Act will remain valid.
  • Land divisions creating 1 or more additional allotments in an environment and food production area which received development plan consent prior to the commencement of the PDI Act must receive full development approval within two years after the commencement of the PDI Act. This will not apply to land in a Character Preservation Area under the Development Act.

Planning and Design Code and Development Plans – Schedule 8, clause 9

  • The Planning and Design Code is not required to be completed until 1 July 2020.
  • Until 1 July 2020 Development Plans will remain in force and have the effect as if they formed part of the Planning and Design Code.
  • The Minister can amend a Development Plan at any time if the Minister considers it necessary or appropriate in view of the transition from Development Plans to the Planning and Design Code. We consider that amendments to all Development Plans will be necessary to ensure that they function effectively under the new planning system, especially in light of the new “assessment pathways”.
  • Until 1 July 2020 a Development Plan can still be amended by way of DPA, however, a council must not commence the DPA process without the approval of the Minister.
  • The Minister may revoke a Development Plan when it is no longer required.

Local heritage and significant trees – Schedule 8, clauses 10 and 11

  • Local heritage places designated under the Development Act before the commencement of the PDI Act will be taken to be a heritage place designated by the Planning and Design Code.
  • Significant trees which are currently declared as such in a Development Plan will be taken to be significant trees under the PDI Act.
  • These provisions allow present local heritage places and trees designated as Significant Trees in Development Plans to retain their status as such automatically and without the need for public consultation and/or the ability for land owners to instigate appeals.

Assessment Panels – Schedule 8, clause 12

  • Council Development Assessment Panels established under section 56A of the Development Act will effectively cease to exist when the PDI Act commences operation.
  • On the day the provisions of the PDI Act relating to assessment panels commence operation a council will be required to appoint an assessment panel in accordance with section 83 of the Act (being no more than 5 members, only 1 of which may be a member of a council);
  • If a council does not appoint an assessment panel as required the Minister may constitute a local assessment panel.

Regional assessment panels – Schedule 8, clause 13

  • On the day the provisions of the PDI Act relating to regional assessment panels commence operation the Minister can constitute a regional assessment panel: either as a successor of a regional development assessment panel set up under the Development Act; or in response to a request by 2 or more councils.
  • Regulations of the PDI Act may provide for practices and procedures of a regional assessment panel.
  • These provisions will allow existing Regional Development Assessment Panels to smoothly transition into the new planning system.

Assessment managers – Schedule 8, clause 14

  • On the day the provisions of the PDI Act relating to assessment panels commence operation a council will be required to appoint an assessment manager.

Accredited professionals – Schedule 8, clause 16

  • The provisions of the PDI Act which require:
    • all persons appointed to a council assessment panel other than council members; and
    • the assessment manager,

to be an accredited professional will not come into operation until a day to be proclaimed.

  • This provision strongly suggests that there will be a reasonable transition period to allow the accreditation scheme to be developed and to provide Councils with time to transition assessment panel composition and to ensure that they have an accredited professional employed or contracted as the assessment manager.

Existing applications – Schedule 8, clause 18

  • The transition over to the PDI Act will not affect development applications lodged before its commencement.
  • An application lodged but not finally determined before the commencement of the PDI Act may be continued and completed under the provisions of the Development Act, except that:
    • the relevant authority for the purposes of the application will be, after the PDI Act has commenced, a relevant authority under the PDI Act;
    • an assessment panel will be an assessment panel under the PDI Act;
    • a notice of the decision will be in accordance with section 126 of the PDI Act not section 40 of the Development Act;
    • in relation to conditions of such an application section 127 of the PDI Act will apply not section 42 of the Development Act;
    • the decision in respect of the application will be taken to be a decision under the PDI Act; and
    • section 125 of the PDI Act, relating to a deemed consent or a deemed planning consent will not apply.

Appeals – Schedule 8, clause 19

  • An appeal under sections 38 and 86(1)(b) of the Development Act (relating to public notice) may be exercised in relation to an application lodged but not finally determined before the commencement of the PDI Act.

Major developments and projects – Schedule 8, clause 20

  • Where a declaration has been made under section 46 of the Development Act in relation to a proposed major development or project but a decision under section 48 of the Development Act has not been made prior to the commencement of the PDI Act the Development Act will continue to apply.

Crown and Infrastructure Development – Schedule 8, clause 21

  • Where an application lodged under section 49 or 49A of the Development Act has not been finally determined prior to the commencement of the PDI Act the Development Act will continue to apply.

Building work – Schedule 8, clause 22

  • Where a notice pursuant to section 60 of the Development Act has been issued (i.e. a notice relating to work that affects stability) section 60 of the Development Act will continue to apply until the matter has been finally determined.

Development Plans relevant to assessments under the PDI Act; or – how to determine an assessment pathway using Development Plans – Schedule 8 clauses 23 – 26

  • Where an application is lodged after the commencement of the PDI Act and before the completion of the Planning and Design Code:
    • if the development is described as complying in the relevant Development Plan it will be taken to be deemed-to-satisfy development under the PDI Act
    • if the development is described as non-complying in the relevant Development Plan it will be taken to be restricted development under the PDI Act but the relevant authority will (other than where section 94(1)(d) of the PDI Act applies) be the relevant council’s assessment panel; and
    • if the development is described as merit in the relevant Development Plan it will be taken to be assessed on its merit under the PDI Act.
  • It must be remembered that under the PDI Act:
    • deemed-to-satisfy developments must be approved and do not undergo any form of public notification;
    • restricted development is subject to broad public notification requirements and appeal rights will, in most circumstances, exist for representors. When the Planning and Design Code is completed, the relevant authority for restricted developments will be the State Planning Commission; and
    • merit or “performance assessed” developments require more limited public notification akin to category 2 notification under the Development Act.

Building activity and use – Schedule 8, clause 27

  • The provisions of the PDI Act relating to classification and occupation of buildings do not apply to or in relation to a building owned or occupied by the Crown or to any building work carried out by the Crown before the PDI Act commences.

Swimming pool safety – Schedule 8, clause 28

  • Section 71AA of the Development Act will be repealed on a particular day (yet to be specified) and section 156 of the PDI Act will commence and be taken to form part of the Development Act.
  • Section 156 requires that certain requirements be met upon the occurrence of a “prescribed event”. Both the requirements and the “event” will be prescribed by regulation.  It follows that section 71AA of the Development Act will not be replaced by section 156 of the PDI Act until the regulations have been prepared.
  • Where a development under the Development Act includes the construction of installation of a swimming pool/swimming pool safety features such development will still be assessed under the Development Act.

Fire Safety – Schedule 8, clause 29

  • The provisions of the PDI Act relating to fire safety do not apply to or in relation to a building owned or occupied by the Crown before the PDI Act commences.

Infrastructure frameworks – Schedule 8, clauses 30 – 31

  • The Bill provides for the authorisation of pilot infrastructure schemes ahead of the full implementation of the PDI Act.
  • Such a pilot scheme can be established only if the Minister is acting at the request of a person or body interested in the provision or delivery of infrastructure and the Minister considers that the scheme is suitable to act as a pilot scheme.

Land Management Agreements –Schedule 8, clause 32

  • A council must provide a copy of all land management agreements it is a party to within 3 months after the commencement of the PDI Act, to the Minister. This provision suggests that the register of land management agreements under the PDI Act may be a central database held by the Minister.
  • A Land Management Agreement in force prior to the commencement of the PDI Act will be taken to be, and will be enforceable as, a Land Management Agreement under the PDI Act.
  • This is good news as all existing LMA’s will simply continue on, unaffected by the new Act. Councils will need to ensure that their LMA registers are up-to-date in readiness for providing them to the Minister.

Funds held by Councils – Schedule 8, clause 33

  • A carparking fund under section 50 of the Development Act will continue as an off-setting contribution scheme fund under section 197 of the PDI Act on the day the PDI Act commences. In effect, carparking funds will continue to exist and apply under the PDI Act, but only to the extent that they apply to car parking contributions.  Councils who wish to adopt a broader off-setting contribution scheme will need to separately establish such a scheme.
  • An urban trees fund under section 50B of the Development Act will continue as an urban tree fund under section 200 of the PDI Act on the day the PDI Act commences.

Authorised officers – Schedule 8, clause 35

  • An authorised officer appointed under the Development Act will be taken to have been appointed as an authorised officer under section 210 of the PDI Act.
  • This provision avoids the need for new appointments to be made under the PDI Act for existing authorised officers.

Advisory committees – Schedule 8, clause 36

  • Advisory committees established to provide advice to the Minister on the transition to the PDI Act under section 244 of that Act – including the local government advisory committee will be dissolved on 30 June 2019. No further committees need to be established after that date.

Proclamation of open space – Schedule 8, clause 37

  • A proclamation made under section 62 of the Planning Act 1982 (or made under section 61 of the Planning and Development Act 1966 or section 29 of the Town Planning Act 1929) which declares land as open space and, in turn, prohibits the division of land will continue in force and effect as if the Planning Act 1982 had not been repealed.

Conditions – Schedule 8, clause 38

  • A condition attached to a development authorisation under the Development Act will remain in force as if granted under the PDI Act. This will ensure that conditions imposed on all development authorisations granted before the PDI Act will continue to exist and be enforceable under the new Act.

The Bill provides greater certainty as to how we will transition over to the new planning system under the PDI Act and how long that transition is expected to take – i.e. until 1 July 2020.

What we are yet to see is exactly when the transition will commence and what the key commencement dates will be. These dates should become known as the Bill progresses through Parliament.

In light of the debate which occurred in respect of the PDI Bill, it remains to be seen how quickly and smoothly this Bill will progress.

We will endeavour to keep you updated with every milestone and amendment that transpires.

If you have any questions regarding the above please contact Philippa Metljak at pmetljak@kelledyjones.com.au or on 8113 7112 or Victoria Shute at vshute@kelledyjones.com.au or on 8113 7104