South Australian Consolidated Acts South Australian Consolidated Acts25—Amendments by a council
(1) If a council is
considering an amendment to a Development Plan, the
council must first reach agreement with the Minister on a "Statement of
Intent" prepared by the council in accordance with the regulations.
(2) The Minister must,
for the purposes of subsection (1), consult with the Advisory Committee
if the Minister considers that the proposed amendment would be seriously at
variance with the Planning Strategy (and may consult with
the Advisory Committee with respect to any other matter that should, in the
opinion of the Minister, be referred to the Advisory Committee for advice).
(3) If or when
agreement is reached, and the council decides to proceed,
the council must prepare a proposal, to be called a "Development Plan
Amendment" (or "DPA"), that complies with the following requirements:
(a) the
DPA must be based on the outcome of investigations initiated by the council in
accordance with the terms of the Statement of Intent and such other
investigations (if any) as the council thinks fit;
(b) the
DPA must include an assessment of the extent to which the proposed
amendment—
(i)
accords with the Planning Strategy; and
(ii)
accords with the Statement of Intent; and
(iii)
accords with other parts of the Development Plan; and
(iv)
complements the policies in the Development Plans for
adjoining areas; and
(v)
satisfies the matters prescribed in the regulations;
(c) the
DPA must include—
(i)
an explanation of the intent of the proposed amendment,
the relationship between that intent and the policy of the Statement of
Intent, and a summary of the major policy changes (if any) that are proposed;
and
(ii)
a summary of the conclusions drawn from the
investigations and assessments referred to above; and
(iii)
a draft of the amendment, or a draft of the relevant
section of the Development Plan as amended (with the amendments shown in a
distinctive manner);
(d) the
DPA must include an assessment of the extent to which the proposed amendment
accords with relevant infrastructure planning (with respect to both physical
and social infrastructure) identified by the council through strategic
planning or other processes undertaken by the council under this Act or the
Local Government Act 1999 or identified by a Minister, or any other
relevant government agency, in accordance with any scheme set out in the
regulations, in connection with the preparation of the DPA under this Act;
(e) the
DPA must include any other matter prescribed by the regulations.
(4) A DPA may only be
prepared after the council has considered the advice of a person with
prescribed qualifications.
(5) Despite a
preceding subsection, a council cannot, except as authorised by the Minister,
propose an amendment to a part of a Development Plan that has been declared by
the Minister by notice in the Gazette as being part of a set of standard
policy modules for the purposes of this Act.
(6) When the council
has prepared a DPA in accordance with the preceding subsections, the DPA will
be dealt with in accordance with process A, B or C, as described below,
depending on an agreement reached between the council and the Minister as part
of the Statement of Intent, or at some later time if so determined or agreed
by the Minister.
(7) Process A is as
follows:
(a) the
council must first refer the DPA to any government Department or agency that
has a direct interest in the matter, and any other body specified in
the Statement of Intent, for comment within the period prescribed by the
regulations;
(b) the
Minister will then consider the matter and any comment from a Department,
agency or other body to which the DPA has been referred, although if a
response is not received by the council within the period that applies under
paragraph (a), the council and the Minister may assume that the
particular Department, agency or other body does not desire to provide any
comment;
(c) the
Minister may then give his or her approval to the release of the DPA or, after
consultation with the council—
(i)
require an alteration to the DPA (and in such a case the
council must comply with the requirement); or
(ii)
determine that the DPA be divided into parts (with or
without alterations) and that each part be dealt with separately (and in such
a case the determination will have effect according to its terms and each part
will then be taken to be a separate DPA for the purposes of this Act);
(d) the
council must then release the DPA for public consultation, in accordance with
the regulations, over a period of at least 8 weeks.
(8) Process B is as
follows:
(a) if
required by the Minister, the council must first refer the DPA to the Minister
for consideration and the Minister may, after consultation with the
council—
(i)
require an alteration to the DPA (and in such a case the
council must comply with the requirement); or
(ii)
determine that the DPA be divided into parts (with or
without alterations) and that each part be dealt with separately (and in such
a case the determination will have effect according to its terms and each part
will then be taken to be a separate DPA for the purposes of this Act);
(b)
subject to complying with paragraph (a) (if relevant), the council
must—
(i)
refer the DPA to any government Department or agency that
has a direct interest in the matter, and any other body specified in
the Statement of Intent, for comment within a period of 8 weeks (and if a
response is not received by the council within this period then the council
and the Minister may assume that the particular Department, agency or body
does not desire to provide any comment); and
(ii)
release the DPA for public consultation, in accordance
with the regulations, over a period that is at least concurrent with the
period that applies under subparagraph (i).
(9) Process C is as
follows:
(a) the
council must refer the DPA to any government Department or agency that has a
direct interest in the matter, and any other body specified in the Statement
of Intent, for comment within a period of 4 weeks (and if a response is
not received by the council within this period then the council and the
Minister may assume that the particular Department, agency or body does not
desire to provide any comment);
(b) the
council must release the DPA for public consultation, in accordance with the
regulations, over a period that is at least concurrent with the period that
applies under paragraph (a);
(c) the
council must, at the time that the DPA is released for public consultation,
give—
(i)
an owner or occupier of any land that is directly subject
to the operation of the proposed amendment; and
(ii)
an owner or occupier of each piece of adjacent land to
land that is directly subject to the operation of the proposed amendment,
a written notice in accordance with the regulations.
(10) A council must
not release a DPA for public consultation unless or until the chief executive
officer of the council has, on behalf of the council, issued a certificate in
the prescribed form relating to the extent to which the proposed
amendment—
(a)
accords with the Planning Strategy; and
(b)
accords with the Statement of Intent; and
(c)
accords with other parts of the Development Plan; and
(d)
complements the policies in the Development Plans for adjoining areas; and
(e)
satisfies the matters prescribed in the regulations.
(11) In addition to
any requirement prescribed by the regulations, a council must, for the
purposes of undertaking the public consultation required above—
(a)
allow interested persons to make representations in writing to the council in
relation to the matter over the period that applies for the purposes of the
public consultation; and
(b) hold
within its area at least 1 meeting where members of the public may attend and
make representations in relation to the matter (although if no written
representation under paragraph (a) indicates an interest to be heard, a
meeting need not be held and, in a case where section 24(1a) applies,
only 1 meeting need be held in the area of 1 relevant council); and
(c)
appoint a committee (which may, but need not, include members of the council)
to consider any representations made under paragraph (a) or (b) and to
provide advice to the council in relation to these representations.
(12) If a proposed
amendment designates a place as a place of local heritage value, the council
must, at or before the time when the DPA is released for public consultation,
give each owner of land constituting the place proposed as a place of local
heritage value a written notice—
(a)
informing the owner of the proposed amendment; and
(b)
inviting the owner to make submissions on the amendment to the council within
the period provided for public consultation under the regulations.
(13) The council must,
after complying with the requirements of the preceding subsections—
(a)
prepare a report on the matters raised during the consultation period, on the
reasons for any failure to comply with any time set for any step under those
subsections, and on any recommended alterations to the proposed amendment (but
these alterations cannot have effect until approved by the Minister under
subsection (15)); or
(b) if
it thinks fit, by notice in writing to the Minister, decline to proceed any
further with the amendment.
(14) The council must
send to the Minister, in accordance with the regulations—
(a) a
copy of a report under subsection (13)(a); and
(b) a
certificate from the chief executive officer of the council, in the prescribed
form—
(i)
confirming that the council has complied with the
requirements of this section and that the proposed amendment is in a correct
and appropriate form; and
(ii)
if a report under subsection (13)(a) recommends an
alteration or alterations to the proposed amendment—relating to the
extent to which the amendment, as altered—
(A) accords with the Planning Strategy; and
(B) accords with other parts of the
Development Plan; and
(C) complements the policies in the
Development Plans for adjoining areas; and
(D) satisfies the matters prescribed in the
regulations.
(15) On the receipt of
a report under subsection (13)(a)—
(a) the
Minister must seek the advice of the Advisory Committee if the Minister is of
the opinion that the proposed amendment would not be in accordance with
the Planning Strategy (and may seek the advice of the Advisory Committee with
respect to any other matter that should, in the opinion of the Minister, be
referred to the Advisory Committee for advice); and
(b) in
the case of an amendment that designates a place as a place of local heritage
value—the Minister must seek the advice of the Advisory Committee if the
owner of the land objects to the amendment (and, in such a case, the owner of
the land must be given a reasonable opportunity to make submissions to
the Advisory Committee (in such a manner as the Advisory Committee thinks fit)
in relation to the matter before the Advisory Committee reports back to the
Minister),
and thereafter the Minister may—
(c)
approve the amendment; or
(d)
after consultation with the council, alter the amendment and approve the
amendment as altered; or
(e)
decline to approve the amendment (and, in such a case, the Minister must
provide the council with written reasons for the Minister's decision); or
(f)
after consultation with the council, divide the amendment into separate
amendments (with or without alterations) and approve one or more of those
amendments and, as to the remaining amendment or amendments, undertake
consultation with the council in relation to the matter (and, in such a case,
the Minister may then reconsider the amendment or amendments (with or without
alterations) and exercise, in relation to the amendment or amendments, any
power conferred on the Minister under this subsection to approve, alter or
decline to approve the amendment or amendments).
(16) The Minister is
not required to consult with the council under subsection (15)(d) in
relation to any alteration made—
(a) in
order to make a change of form (without altering the effect of an underlying
policy reflected in the amendment); or
(b) in
order to take action which, in the opinion of the Minister, is—
(i)
addressing or removing irrelevant material or a
duplication or inconsistency (without altering the effect of an underlying
policy reflected in the amendment); or
(ii)
correcting an error.
(17) The Minister will
give an approval under subsection (15) by notice in the Gazette.
(18) A notice under
subsection (17) must fix a day on which an approved amendment will come
into operation (and the relevant Development Plan will then be taken, from
that day, to be amended in the manner set out in the amendment).
(19) Despite a
preceding subsection (but subject to the operation of subsection (21)),
the Minister may, by notice in writing to the council, determine that a DPA
will lapse if the council has failed—
(a) to
refer the DPA to the Minister or a government Department or agency in
accordance with the requirements of this section within the relevant period;
or
(b) to
release the DPA for public consultation in accordance with the requirements of
this section within the relevant period; or
(c) to
provide a report to the Minister on the matters raised during the public
consultation period for the DPA in accordance with the requirements of this
section within the relevant period,
(and such a determination will have effect according to its terms).
(20) A reference to
the "relevant period" in paragraph (a), (b) or (c) of
subsection (19) is a reference to a period specified by the relevant
Statement of Intent or, if the Minister has granted the relevant council an
extension of that period, a reference to that period as extended by the
Minister (and if no period is so specified, is a period determined in
accordance with the regulations).
(21) The Minister
must, before making a determination under subsection (19), consult with
the council and give the council a reasonable opportunity to make submissions
to the Minister.
(21a) Despite a
preceding subsection, if, in relation to a particular DPA—
(a) any
relevant period applying under subsection (19) has expired; and
(b) at
least 5 years have elapsed since agreement was reached on the Statement
of Intent under subsection (1),
the DPA will lapse by force of this subsection at the end of a period
prescribed by the regulations unless the Minister, by notice in the Gazette,
exempts the DPA from the operation of this subsection.
(21b) An exemption
under subsection (21a) may include a condition that will result in the
DPA lapsing in any event if the terms of the condition are not met.
(22) The Minister may
act or rely on a matter certified by the chief executive officer of a council
under this section without further inquiry.
(23) If a DPA or
amendment is divided under this section, the Minister may, after consultation
with the relevant council, modify the Statement of Intent to set new timelines
or to make such other modifications as appear to the Minister to be reasonable
in view of the division.