Development Regulation amendments in response to COVID-19

In response to COVID-19, the State Government has announced a series of planning regulation changes that are crucial to ensuring South Australia’s development industry continues to operate without delays to projects.

COVID-19 Emergency Response Bill was passed by Parliament on 14 May 2020. Planning amendments in the Bill include:

  • For Crown development and public infrastructure applications the council consultation period has been temporarily reduced to 15 business days under both the Development Act and the PDI Act. Under the Development Act the Crown Development threshold for public consultation has been raised from $4 million to $10 million. These changes are temporary under the COVID-19 Emergency Response Act 2020 as they are only in place until relevant declarations relating to the outbreak of COVID-19 within South Australia are ceased or 9 October 2020 (whichever is the earlier).
  • Under the Development Act the concurrence process for non-complying development applications under section 35 has been removed permanently – noting that that the Development Act will soon be repealed and replaced in full by the PDI Act which does not prescribe a concurrence process for development approvals.

It is important to note that the Crown Development changes are temporary but the concurrence change is permanent.

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Due to the current COVID-19 pandemic, variations to the Development Regulations 2008 under the Development Act 1993 have been passed to ensure the continued operation of the development system and avoid undue delays in the approval of applications.

The variations made by the State Government follow evidence of delays in processing applications due to the increased number of councils temporarily reducing or shutting core functions or through reduced staff numbers. 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.

The new Development (Public Health Emergency) Variation Regulations 2020 (PDF, 33 KB) enable a range of emergency planning powers and provide for:

  • Ministerial call-in of development applications from councils where they cannot be assessed or there are significant delays in their assessment due to COVID-19.
  • Removing the requirement for developments called in by the Minister or otherwise assessed by the State Planning Commission to be referred to the relevant council for advice – noting that where technical information is required from a council that can still be sought administratively.
  • Amending the provisions relating to development applications referred to government agencies to require advice to be provided within 20 business days and requests for further information to be made within 5 business days.
  • Ensuring that public meetings relating to development matters can be held by audio or audio-visual means.
  • Ensuring that where required public inspection of development applications can be via the internet.
  • Temporary removal of conditions of planning consent that limit the hours in which goods can be delivered to any premises specified in a notice on the SA Planning Portal by the Minister. These could include, for example, restaurants providing take-away meals, chemists or bottle shops.

These regulation variations will ensure the development system continues to operate even if a council is forced to temporarily close or is working under reduced staff levels. These changes will give South Australian communities, businesses and the development industry confidence that all necessary steps are being taken to ensure the coronavirus pandemic does not disrupt the continued flow of construction work across our state.

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On 19 March 2020 regulation variations were made to the Development Regulations 2008 that removed planning restrictions which apply to supermarket and grocery stores around the hours in which goods may be delivered. These changes were made in response to the COVID-19 pandemic and meant that enforcement action under the Development Act 1993 cannot be undertaken where a supermarket has goods delivered outside their conditions of approval. They were made to provide surety that supermarkets and grocery stores can have goods delivered outside of conventional hours due to anticipated heavy demand on goods deliveries due to increased customer demand as a result of COVID-19.

The regulations were made with an expiry date of 30 September 2020, or an earlier date, if designated by the Minister for Planning by notice in the Government Gazette.

The National Heavy Vehicle Regulator (NHVR) recently sought to extend the waiving of restrictions on all curfew permits (except those relating to safety and access) across Australia until at least late December 2020. The NHVR advised the Government that there are significant work pressures on the grocery delivery supply chain as part of the national response to COVID-19. In particular they have advised that the freight industry is experiencing significant pressure to maintain supply chains due to the national dependency on essential freight movements. The NHVR sought an extension of these exemptions across all jurisdictions to ensure both national consistency and the continuation of goods deliveries whilst ensuring COVID safe practices can be maintained.

As a result Development (Designated Day) (COVID-19) Variation Regulations (commencement 1 October 2020) extends the designated day applying under Development Regulation 5 relating to the delivery of goods to supermarkets to 6 February 2021.

These regulation variations have been subsequently extended on 4 February 2021. The government has indicated these restrictions are likely to be eased for the duration of the COVID-19  Emergency Response Act which is currently set to expire on 31 May 2021.

Greater procedural and investment certainty for ‘value adding development’ in rural and peri-urban areas of South Australia has been created through variations to the Development Regulations 2008.

These changes will facilitate development or change of use to a shop, tourist accommodation or food and beverage production industries within a General Farming, Primary Industry, Primary Production and Rural zone.

The Regulation variations made by the State Government endeavour to address current planning policies for ‘rural value adding’ that are inconsistent, outdated and impede economic growth in regional areas, creating significant barriers for investment.

The new Development (Schedule 9) Variation Regulations (PDF, 22 KB) will support ‘value adding’ development and allow greater diversification of activities in rural areas of South Australia by:

  • establishing new policy conditions which support ‘value adding’ and related agri-business investment and development in rural areas
  • removing barriers to innovation and efficiency, supporting investment and facilitating diversification of activities on rural land
  • improving land use definition, including for tourist accommodation, to provide for more certain and consistent development assessment processes
  • providing a range of policies to assist in addressing rural interface issues between sensitive and non-sensitive land uses.

The amendments to the Regulations reflect the policy reforms proposed for ‘value adding’ in the Planning and Design Code which is due to be implemented in rural areas in July.

By bringing these changes forward, an appropriate assessment pathway and greater investment certainty is provided now, particularly for ‘value adding’ proposals already in the pipeline.

Greater diversification of activities on rural land will also help to create jobs for South Australians living in our regional towns and help stimulate the economy as we deal with and recover from the impacts of COVID-19.

New regulations have been introduced to allow temporary accommodation for seasonal workers to be established. This is required due to a lack of interstate labour being available to work as casuals in regional areas as a result of COVID related border closures as well as a lack of accommodation availability within those areas. The regulation variations designate temporary accommodation for seasonal workers in areas designated by the Chief Executive of the Attorney General’s Department as accepted development (requiring building consent only).

The regulation change is effective from 23 September 2021 and will expire on 30 April 2022.

The Government has been advised by Viterra, a major grain bulk handling facility operator, that they require the establishment of temporary seasonal worker accommodation to support casual workers during the upcoming grain harvest. As a result the Chief Executive has designated seven grain silo sites where such accommodation can be established.

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