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LG Alert – Design Guidelines and assessment panels and assessment managers under the PDI Act – important update (June 5th, 2017)

In the past week a considerable number of documents have been uploaded to the SA Planning Portal. We provide a concise and practical summary of the documents and their legal implications below.

Draft Design Guidelines

The Draft Design Guidelines have been released for public consultation and can be accessed through the Office for Design and Architecture SA.  Consultation closes on 25 July 2017.

The Design Guidelines are not intended to be taken into account in the assessment of development applications under the Development Act, rather they provide best practice guidelines for medium-density residential development in designated infill areas.

The Design Guidelines are expected to inform the development of the Planning and Design Code under the Planning, Development and Infrastructure Act and may well form the basis for Design Standards under section 69 of that Act in future.

Draft code of conduct for assessment panels

The draft code of conduct for assessment panel members has been published on the SA Planning Portal.

The code prescribes a stricter conflict of interest requirement than sections 83 and 84 of Planning, Development and Infrastructure Act; section 83 governs council assessment panels and joint planning board assessment panels; section 84 governs regional assessment panels and local assessment panels.

According to section 83(1)(g) and (3) and section 84(1)(g) and (2) of the Act,

a member of an assessment panel must not act in relation to a development if he or she has a direct or indirect pecuniary interest in any aspect of the development or any body associated with any aspect of the development;

Without limiting the effect of subsection (1)(g), a person will be taken to have a pecuniary interest in a matter for the purposes of the subsection if an associate of the person has an interest in the matter.”

Section 3(7) of the Act then provides:

For the purposes of this Act, a person is an associate of another person if—

(a)        the other person is a relative of the person or of the person’s spouse or domestic partner; or

(b)        the other person—

(i)         is a body corporate; and

(ii)        the person or a relative of the person or of the person’s spouse or domestic partner has, or 2 or more such persons together have, a relevant interest or relevant interests in shares of the body corporate the nominal value of which is not less than 10% of the nominal value of the issued share capital of the body corporate; or

(c)        the other person is a trustee of a trust of which the person, a relative of the person or of the person’s spouse or domestic partner or a body corporate referred to in paragraph (b) is a beneficiary; or

(d)        the person is an associate of the other person within the meaning of the regulations.”

The draft Code adopts the conflict of interest provisions currently in force for Council Development Assessment Panels and Regional Development Assessment Panels under the Development Act.  Clauses 7-11 of the draft Code provide:

  1. A member of an assessment panel who has a direct or indirect personal or pecuniary interest in a matter before the council development assessment panel (other than an indirect interest that exists in common with a substantial class of persons)—
  2. must, as soon as he or she becomes aware of his or her interest, disclose the nature and extent of the interest to the panel; and
  3. must not take part in any hearings conducted by the panel, or in any deliberations or decision of the panel, on the matter and must be absent from the meeting when any deliberations are taking place or decision is being made.
  4. A member of an assessment panel will be taken to have an interest in a matter for the purposes of item 7 if an associate of the member (within the meaning of section 3 (7) of the PDI Act) has an interest in the matter.
  5. If an interest has been declared by a member of an assessment panel the nature of the interest must be recorded in the minutes of the meeting.

The effect of this is that a failure to declare a conflict of interest pursuant to sections 83 and 84 of the PDI Act exposes the member to prosecution for a criminal offence.

A failure to declare a conflict of interest where it is not a conflict under the Act, but only a conflict under the code, constitutes a breach of the code of conduct which can then result in a complaint against the member and may also constitute grounds for removal from office.

Clauses 10 – 18 of the code govern the actions and behaviours of assessment panel members, may such clauses are similar to those contained within the current Code of Conduct for Panel Members under section 21A of the Development Act.

Clauses 19 and 20 deal with gifts and benefits, stating:

  1. A member of an assessment panel must not seek or accept a gift or benefit that is intended to, is likely to or could be perceived as likely to, cause them to act in an unfair or biased manner in the course of the member’s duties.
  2. A member of an assessment panel must take all reasonable steps to ensure that a person related to the member does not receive gifts or benefits that could appear to be an attempt to influence or secure or have the effect of influencing or securing a favour from the member of an assessment panel. A person is related to a member of an assessment panel for the purpose of this provision if the person is spouse, de facto partner, sibling, parent or child of the member of the assessment panel.

Clause 21 deals with bias and states:

  1. A member of an assessment panel should always have regard to any affiliation, disposition or any material, pecuniary or other interest that would lead to a reasonable apprehension that they may be biased in carrying out any aspect of their role under the Act.

Draft complaints handling-procedures for code of conduct complaints for assessment panel members

The draft Planning, Development and Infrastructure (General) (Assessment Panels) Variation Regulations 2017 have been published on the SA Planning Portal.

The draft Regulations provide for a complaints process for complaints against assessment panel members.

Of particular note:

  • complaints against assessment panel members are to be made to the State Planning Commission only;
  • complaints must be lodged within 6 months unless the SPC has granted approval for complaint to be lodged after that time;
  • the assessment and determination of the complaint is a matter for the SPC.  The SPC can remove an assessment panel member from office.

Draft meeting procedures

The draft Regulations also prescribe meeting procedures for council assessment panels (click here) and the Minister has released draft procedures for regional assessment panels (click here).

The meeting procedures are relatively minimal, dealing with confidentiality, minutes, quorum, voting rights and the status of panel decisions where a position is vacant.

Assessment panels are able to determine the remainder of their meeting procedures. We suggest that assessment panels be asked to review current CDAP/RDAP meeting procedures at their first meeting after 1 October 2017 and adopt additional procedures as necessary.

Assessment manager

The assessment manager will, as stated above, not have any responsibility for handling complaints against assessment panel members (nor will anyone else at a council level).

The assessment manager is, however, (at least from 1 October 2017 until mid-2018 or later) responsible for ensuring that accurate minutes are kept of CAP/RAP meetings and for otherwise ensuring that the panel has adequate advice, resources and reports (see section 87 of the Act).

This information may assist Chief Executive Officers in determining which officer should be appointed as the assessment manager for their council assessment panel.

If you have any queries or require any assistance as to the above, please contact Victoria Shute on 8113 7104 or by email at vshute@kelledyjones.com.au.