South Australian Consolidated Acts South Australian Consolidated Acts34—Determination of relevant authority
(1) Subject to this
Act, the relevant authority, in relation to a proposed development, is
ascertained as follows:
(a)
where the proposed development is to be undertaken within the area of a
council, then, subject to paragraphs (ab) and (b), the council is the
relevant authority (and, subject to paragraph (b)(ii), the council may
act as the relevant authority even if it is to undertake some or all of the
relevant development itself);
(ab)
where—
(i)
the proposed development is to be undertaken within an
area in relation to which a regional development assessment panel has been
constituted (see subsection (3)); and
(ii)
the proposed development is development of a prescribed
kind,
then, subject to paragraph (b), the regional development assessment panel
is the relevant authority;
(b)
where—
(i)
the Development Assessment Commission is constituted by
the regulations as the relevant authority in relation to a class of
development in which the proposed development is comprised; or
(ii)
the proposed development is development of a prescribed
kind to be undertaken by a council; or
(iii)
the Minister, acting at the request of a council or
regional development assessment panel, declares, by notice in writing served
personally or by post on the proponent, that the Minister desires the
Development Assessment Commission to act as the relevant authority in relation
to the proposed development in substitution for the council or regional
development assessment panel (as the case may be); or
(iv)
the proposed development is to be undertaken in a part of
the State that is not (wholly or in part) within the area of a council; or
(v)
the Development Assessment Commission and a council
would, apart from this provision, both be constituted as relevant authorities
in relation to a particular development; or
(va) the
Development Assessment Commission and a regional development assessment panel
would, apart from this provision, both be constituted as relevant authorities
in relation to a particular development; or
(vi)
the Minister declares, by notice in writing served
personally or by post on the proponent, and sent to the relevant council or
regional development assessment panel within five business days after the
declaration is made, that the Minister desires the
Development Assessment Commission to act as (or to become) the
relevant authority for the proposed development in substitution for the
council or the regional development assessment panel because—
(A) in the Minister's opinion the council,
or a council for an area in relation to which the regional development
assessment panel has been constituted (as the case may be), has demonstrated a
potential conflict of interest in the assessment of the development because of
a publicly stated position on the particular development; or
(B) in the Minister's opinion the proposed
development would have significant impact beyond the boundaries of the council
area in which the relevant land is situated; or
(C) the council or regional development
assessment panel has failed to deal with an application for
development authorisation for the development within the time prescribed under
section 41; or
(vii)
the Minister, acting at the request of the
Minister for the River Murray, declares, by notice in writing served
personally or by post on the proponent, that the
Development Assessment Commission should act as the relevant authority in
relation to the proposed development in substitution for the council or the
regional development assessment panel (as the case may be) because, in the
opinion of the Minister making the request, the proposed development may have
a significant impact on an aspect of the River Murray within the meaning of
the River Murray Act 2003 ; or
(viii)
the Minister, acting at the request of the
Minister for the Adelaide Dolphin Sanctuary, declares, by notice in writing
served personally or by post on the proponent, that the
Development Assessment Commission should act as the relevant authority in
relation to the proposed development in substitution for the council or the
regional development assessment panel (as the case may be) because, in the
opinion of the Minister making the request, the proposed development may have
a significant impact on an aspect of the Adelaide Dolphin Sanctuary; or
(ix)
the Minister, acting at the request of the
Minister for Marine Parks, declares, by notice in writing served personally or
by post on the proponent, that the Development Assessment Commission should
act as the relevant authority in relation to the proposed development in
substitution for the council or the regional development assessment panel (as
the case may be) because, in the opinion of the Minister making the request,
the proposed development may have a significant impact on an aspect of a
marine park,
then the Development Assessment Commission is, subject to subsection (2),
the relevant authority.
(1a) Where the
Minister has made a declaration under subsection (1)(b)(vi), the relevant
council or regional development assessment panel may provide the
Development Assessment Commission with a report, relating to the application
for development authorisation, within the time prescribed by the regulations.
(1b) To avoid doubt, a
council may act as the relevant authority in relation to a proposed
development even though it has been involved in preliminary planning or other
work associated with the proposal for the particular development, or has
entered into an associated agreement or agreements in connection with that
preliminary planning or other work (unless the
Development Assessment Commission or a regional development assessment panel
is constituted as the relevant authority by virtue of the operation of
subsection (1)(ab) or (b) (including in a case where the Minister decides
to take action under subsection (1)(b)(vi) in the particular
circumstances)).
(2) Where—
(a) a
proposed development involves the performance of building work; and
(b) the
Development Assessment Commission or a regional development assessment panel
is constituted as a relevant authority under subsection (1),
the Development Assessment Commission or regional development assessment panel
(as the case may be) may—
(c)
refer the assessment of the development in respect of the Building Rules to
the council for the area in which the proposed development is to be
undertaken; or
(d)
require that the assessment of the development in respect of the Building
Rules be undertaken by a private certifier, or by some other person of a class
determined by the Development Assessment Commission or regional development
assessment panel for the purposes of this provision,
and in that case (unless the proposed development is not to be undertaken in
the area of a council) the council for the area in which the development is to
be undertaken will, subject to the regulations and any condition or limitation
imposed by the Development Assessment Commission or regional development
assessment panel, be taken to be a relevant authority for the purposes of this
Act and, subject to any provision made by the regulations, to be the
relevant authority to determine whether the development should be approved.
(3) The Governor may,
for the purposes of this section, by regulation, constitute a regional
development assessment panel in relation to an area or areas of the State
comprising parts or all of the areas of 2 or more councils and, if the
regulation so provides, a part or parts of the State that are not within the
area of a council.
(4) The Governor may,
in the regulation constituting a regional development assessment panel, or by
subsequent regulation, make provision with the respect to—
(a) the
membership of a regional development assessment panel, including—
(i)
the number of members; and
(ii)
the criteria for membership; and
(iii)
the procedures to be followed with respect to the
appointment of members (on the basis that appointments will, according to the
terms of the regulation, be made by the relevant councils or, if appropriate,
the Minister); and
(iv)
the terms of office of members; and
(v)
conditions of appointment of members, or the method by
which those conditions will be determined, and the grounds on which, and the
procedures by which, a member may be removed from office; and
(vi)
the appointment of deputy members;
(b) the
procedures of a regional development assessment panel;
(c)
staffing and other support issues associated with the creation or operations
of a regional development assessment panel;
(d) any
special accounting or financial issues that may arise in relation to a
regional development assessment panel;
(e)
reporting by a regional development assessment panel on its operations and
decisions;
(f) the
proportions in which the councils for the areas in relation to which a
regional development assessment panel is constituted will be responsible for
costs and other liabilities associated with the regional development
assessment panel;
(g)
other matters considered by the Governor to be necessary or expedient for the
purposes of a regional development assessment panel.
(5) A member of a
regional development assessment panel need not be a member of a council for an
area in relation to which the regional development assessment panel is
constituted.
(6) Notice of the
appointment of a member of a regional development assessment panel must be
given in accordance with the regulations.
(6a) A member of a
regional development assessment panel who is not a member of a council must
disclose his or her financial interests in accordance with Schedule 2.
(7) A member of a
regional development assessment panel who has a direct or indirect personal or
pecuniary interest in a matter before the regional development assessment
panel (other than an indirect interest that exists in common with a
substantial class of persons)—
(a)
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
(b) 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.
Penalty: Division 4 fine.
(8) Without limiting
the effect of subsection (7), a member of a regional development
assessment panel will be taken to have an interest in a matter for the
purposes of that subsection if an associate of the member has an interest in
the matter.
(8a) Without limiting
any provision made under subsection (4), the councils for the areas in
relation to which a regional development assessment panel is constituted may
remove a member from the panel for a failure to comply with the requirements
of subsection (6a) or (7) or a breach of, or failure to comply with, a
code of conduct under section 21A.
(9) A member of a
regional development assessment panel incurs no liability for an honest act
done in the performance or purported performance of functions or duties under
this Act.
(10) Any liability
that would, but for subsection (9), attach to a member of a regional
development assessment panel attaches instead to the councils for the areas in
relation to which the regional development assessment panel is constituted.
(11) Subject to
subsection (12), a meeting of a regional development assessment panel
must be conducted in a place open to the public.
(12) A regional
development assessment panel may exclude the public from attendance—
(a)
during so much of a meeting as is necessary to receive, discuss or consider in
confidence any of the following information or matters:
(i)
information the disclosure of which would involve the
unreasonable disclosure of information concerning the personal affairs of any
person (living or dead);
(ii)
information the disclosure of which—
(A) could reasonably be expected to confer
a commercial advantage on a person, or to prejudice the commercial position of
a person; and
(B) would, on balance, be contrary to the
public interest;
(iii)
information the disclosure of which would reveal a trade
secret;
(iv)
commercial information of a confidential nature (not
being a trade secret) the disclosure of which—
(A) could reasonably be expected to
prejudice the commercial position of the person who supplied the information,
or to confer a commercial advantage on a third party; and
(B) would, on balance, be contrary to the
public interest;
(v)
matters affecting the safety or security of any person or
property;
(vi)
information the disclosure of which could reasonably be
expected to prejudice the maintenance of law, including by affecting (or
potentially affecting) the prevention, detection or investigation of a
criminal offence, or the right to a fair trial;
(vii)
matters that must be considered in confidence in order to
ensure that the panel does not breach any law, order or direction of a court
or tribunal constituted by law, any duty of confidence, or other legal
obligation or duty;
(viii)
legal advice;
(ix)
information relating to actual litigation, or litigation
that the panel believes on reasonable grounds will take place;
(x)
information the disclosure of which—
(A) would divulge information provided on a
confidential basis by or to a Minister of the Crown, or another public
authority or official (not being an employee of a council, or a person engaged
by a council); and
(B) would, on balance, be contrary to the
public interest; or
(b)
during so much of a meeting that consists of its discussion or determination
of any application or other matter that falls to be decided by the panel.
(13) A regional
development assessment panel must ensure that accurate minutes are kept of its
proceedings.
(14) A disclosure
under subsection (7)(a) must be recorded in the minutes of the regional
development assessment panel.
(15) Members of the
public are entitled to reasonable access—
(a) to
agendas for meetings of a regional development assessment panel; and
(b) to
the minutes of meetings of a regional development assessment panel.
(16) However, a
regional development assessment panel may, before it releases a copy of any
minutes under subsection (15), exclude from the minutes information about
any matter dealt with on a confidential basis by the panel.
(17) Minutes must be
available under subsection (15)(b) within five days after their adoption
by the members of the panel.
(18) An act of a
regional development assessment panel is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
(18a) In addition to
its functions as a relevant authority under this Act, a regional development
assessment panel may, as it thinks fit, provide advice and reports to any
council for the areas in relation to which the panel is constituted on trends,
issues and other matters relating to planning or development that have become
apparent or arisen through its assessment of applications under this Act.
(18b) Each regional
development assessment panel must have a public officer (who must not be a
member of the panel) appointed by the panel.
(18c) A regional
development assessment panel must, on appointing a public officer, ensure that
notice of the appointment (including the public officer's name and contact
details) is published in the Gazette.
(18d) The functions of
a public officer include ensuring the proper investigation of complaints about
the conduct of a member of the relevant regional development assessment panel
(but nothing in this section prevents a person making a complaint to the
Ombudsman at any time under the Ombudsman Act 1972 or the public officer
referring a complaint to another person or authority for investigation or
determination).
(19) The Governor may,
by regulation—
(a) vary
a regulation previously made under subsection (3) or (4);
(b)
dissolve a regional development assessment panel (and make any provision
necessary or expedient on account of the dissolution (including for the
transfer to another authority of matters under the consideration of the panel
immediately before its dissolution)).
(20) The Minister must
ensure that the councils for the areas in relation to which a regional
development assessment panel is, or is to be, constituted concur before a
regulation is made under subsection (1)(ab)(ii), (3), (4) or (19).
(21) A council may, by
giving the Minister at least two months notice in writing, withdraw from a
regional development assessment panel.
(22) If a council
withdraws from a regional development assessment panel under
subsection (21)—
(a) the
council remains liable for its share of the costs and liabilities of the
regional development assessment panel incurred or accrued before the date of
withdrawal; and
(b) the
Governor may, after the Minister has consulted with the remaining councils, by
regulation, vary or revoke to a regulation previously made under
subsection (3) or (4) on account of the withdrawal (and in this case
subsection (20) does not apply).
(23) A council must
delegate its powers and functions as a relevant authority with respect to
determining whether or not to grant development plan consent under this Act
to—
(a) its
council development assessment panel; or
(b) a
person for the time being occupying a particular office or position (but not
including a person who is a member of the council); or
(c) a
regional development assessment panel (if such a delegation is consistent with
the extent to which the panel may act under the provisions of the regulations
constituting the panel and in addition to the operation of
subsection (1)(ab)).
(24) A council may, in
connection with the operation of subsection (23)—
(a) make
a series of delegations according to classes of development; and
(b) vary
any delegation from time to time,
but a council cannot at any time—
(c) act
in its own right in a matter that is subject to delegation under that
subsection; or
(d) give
a direction with respect to the exercise or performance of a power or function
under the delegation.
(25) A delegation
under subsection (23), or the variation of a delegation under
subsection (24), will not—
(a)
affect any application lodged under this Act before the making of the
delegation; or
(b)
affect any right or power created, established or exercisable before the
making of the delegation; or
(c)
affect any action, legal proceedings or remedy that may be taken, pursued or
enforced on account of any application lodged under this Act before the making
of the delegation.
(26) A power or
function delegated under subsection (23) may be further delegated (and
any such further delegation may be made subject to specified conditions and
limitations, is revocable at will and will not derogate from the power of the
panel or person making the delegation to act in any matter).
(27) A council
must—
(a)
establish a policy relating to the basis upon which it will make the various
delegations required by subsection (23); and
(b)
ensure that a copy of that policy is available—
(i)
for inspection at the principal office of the council
during ordinary office hours; and
(ii)
for inspection on the Internet.