Character Preservation (Barossa Valley) Act 2012

The Act introduces and relies on several key concepts defined in s 3. The district is defined by reference to a deposited plan (GP 4 of 2012 as it existed on 26 June 2012), which delineates the Barossa Valley region. Within the district, three categories of area are distinguished: rural area (the area not including townships), rural living area (areas marked as such on the same plan), and township (areas marked as townships). The definition of residential development is critical: it means development primarily for residential purposes, but expressly excludes the use of land for a hotel or motel or other temporary residential accommodation for valuable consideration, and also excludes a dwelling on land used primarily for primary production purposes. This carve‑out preserves the ability to have farm‑worker dwellings or tourist accommodation without triggering the residential development prohibition in s 8(5). The special character of the district is defined in s 3(2) as the identity and characteristics of the district and its locations, having regard to any relevant state planning policy under the PDI Act and the character values of the district. Those character values are listed in s 7(1): the rural and natural landscape and visual amenity; heritage attributes; built form of the townships; viticultural, agricultural and associated industries; and scenic and tourism attributes. These values are not merely aspirational; they are made relevant to assessing the special character and to the policies to be developed and applied by state planning policy and the Planning and Design Code (s 7(2)).

The concept of a character preservation law under the PDI Act (s 4(2)) means that the Act is integrated into the planning assessment framework: any application for development authorisation must be assessed consistently with the Act’s provisions, and the restrictions in s 8 operate as a mandatory overlay. The prescribed allotment provisions in s 8(9) are defined as the provisions of the Development Plan under the (now‑repealed) Development Act 1993 relating to the rural area and minimum allotment sizes as they were in force on the prescribed day (the day the Bill was introduced into the House of Assembly). This locks in a particular historic minimum lot size as a floor, which can override the Planning and Design Code if the latter would allow smaller lots. The definition of relevant authority is tied to the PDI Act: it is the body determined to be the relevant authority under that Act for the purpose of a development application. This ensures the character preservation restrictions are administered by the same decision‑makers who apply the general planning rules.

The Act primarily affects landowners and developers within the Barossa Valley district, particularly those in the rural area and rural living areas. Any person seeking to divide land in the rural area to create additional allotments is directly captured by s 8. For subdivisions that create lots intended for residential development in the non‑rural‑living part of the rural area, the Act imposes a mandatory refusal (s 8(5)) - a prohibition, not a discretion. Even where residential use is not proposed, a landowner must still navigate the concurrence requirements between the relevant authority and the State Planning Commission or council. The Act also affects councils: a relevant council whose area includes part of the district has a concurrence role under s 8(3) and must be consulted on regulations (s 11(4)) and the statutory review (s 10(2)). The State Planning Commission is also affected, as it must either concur with or seek concurrence for certain applications.

Beyond land division, the regulation‑making power in s 11(2)(c) and (d) potentially affects anyone undertaking or proposing to undertake any activity in the district, even if that activity would otherwise be lawful. The power is extremely broad: regulations may prohibit or restrict a specified activity, or a class of activity, despite any other Act or law. This could affect wine producers, tourism operators, event organisers, or any business or resident in the district. However, such regulations have not yet been made (the Act itself does not list any), so the immediate impact is confined to the s 8 land‑division restrictions.

Local government authorities are also potential subjects of information requests under s 9. Any person or body responsible for issuing statutory authorisations (approvals, licences, permits) under any Act can request information from an applicant or from a government or local government authority to enable consideration of matters relevant to the Act’s objects. This creates an information‑gathering power that can be used to scrutinise activities beyond the planning system - for example, primary production licences, tourism permits, or water allocations. The recipient must comply without reasonable excuse, creating a compliance burden.

The Act imposes several duties. The primary duty on an applicant for development authorisation that involves a land division in the rural area is to comply with the mandatory refusal or condition regime in s 8. There is no right to proceed with residential development on newly created allotments outside rural living areas if the application was made after 18 January 2013. For rural living areas, the duty is to meet the larger minimum allotment size if the prescribed allotment provisions are more onerous (s 8(7)). A person or body issuing statutory authorisations under any Act has the right to request information under s 9, and the recipient (applicant or government authority) has a duty to comply.

The Act also imposes a duty on any person or body involved in administering any Act, when exercising powers and functions in relation to the district, to have regard to and seek to further the objects of the Act (s 6(2)). This is a broad duty that extends beyond planning officials to, for example, environmental regulators, heritage bodies, or even transport authorities when making decisions that affect the district.

A significant right is the absence of a right of appeal. Section 8(4) expressly provides that no appeal lies under the PDI Act against a refusal by a relevant authority to grant development authorisation for a s 8 development, or against a refusal by the State Planning Commission or a council to concur in granting such authorisation. This removes the usual merits review that would otherwise be available for planning decisions. Landowners have no recourse to the Environment, Resources and Development Court (or its successor under the PDI Act) for refusals based on s 8.

The Act does not create any private rights of action. It is enforced through the planning system and through regulations that can prescribe fines of up to $10,000 for offences (s 11(2)(e)). The Minister has a duty to review the Act within five years of commencement (s 10(1)), but that review has already occurred (and presumably been tabled). The Act does not set out any positive rights for landowners, such as compensation for loss of development value.

The Act itself does not create direct offences or penalties for contravening its provisions, apart from the regulation‑making power. Section 11(2)(e) allows regulations to prescribe fines not exceeding $10,000 for offences against the regulations. However, no regulations have been made under the Act as of the text provided (the Act lists no regulations). Enforcement of the land‑division restrictions occurs through the ordinary planning enforcement mechanisms under the PDI Act. A development authorisation granted in breach of s 8 would be invalid or voidable, and a person who undertakes development without authorisation, or in breach of a condition (such as the deemed condition in s 8(8) that additional allotments not be used for residential development), would be subject to the enforcement and penalty provisions of the PDI Act. Those penalties can be substantial, including significant fines and orders for remediation.

The information‑gathering power in s 9 carries its own enforcement mechanism: a person who fails, without reasonable excuse, to comply with a request for information commits an offence. The penalty for that offence is not specified in the Act itself, but would be set under the relevant Act under which the request was made, or potentially under the PDI Act’s general offence provisions. The word “must” in s 9(1) imposes a mandatory duty, and the phrase “without reasonable excuse” implies that the prosecution bears the burden of proving absence of excuse beyond reasonable doubt.

The State Planning Commission and councils have a duty to withhold concurrence or refuse authorisation as required by s 8. If they fail to do so, the development authorisation would likely be ultra vires. However, the Act does not impose penalties on decision‑makers for granting authorisation in breach; the risk is judicial review.

The regulation‑making power in s 11 is the main source of future penal provisions. The Governor can prohibit or restrict activities despite any other Act or law (s 11(2)(c)), meaning that even if a person holds a licence under another Act, a regulation under this Act could override that licence for activities in the district. This creates a potential catch‑all enforcement tool. The maximum fine of $10,000 per offence is modest by planning standards, but multiple offences could be charged.

Section 4(1) establishes that the Act is in addition to and does not limit or derogate from any other Act, except where a contrary intention is expressed. This means the Act supplements, rather than replaces, existing legislation. The most important interaction is with the PDI Act. Section 4(2) declares the Act to be a character preservation law under the PDI Act. This has the effect that the Planning and Design Code must give effect to the Act, and the restrictions in s 8 operate as mandatory provisions that cannot be overridden by the Code or by delegated planning policies. The reference in s 7(2) to state planning policy and the Planning and Design Code ensures that the character values inform both the Code’s content and its application.

The definition of development authorisation in s 3(1) adopts the meaning from the PDI Act, ensuring consistency. The relevant authority is determined under the PDI Act. The concurrence requirements in s 8(2) and (3) integrate into the PDI Act’s assessment pathway: an application that requires State Planning Commission concurrence would be referred accordingly, although the Act does not set out the referral mechanism - that may be provided by regulation under s 11(2)(a).

The Act also interacts with the Development Act 1993 through the transitional provisions in Schedule 1, which required the Minister to amend the Planning Strategy and review Development Plans within six months. However, since the PDI Act has now replaced the Development Act (for most purposes by 19 March 2021), those transitional provisions are spent. The Act’s references to the Development Act, such as in s 8(9) (which defines prescribed allotment provisions by reference to the Development Plan under the Development Act 1993), have been preserved through amendments by the PDI Act.

The power to require information under s 9 can be exercised by any person or body responsible for issuing statutory authorisations under any Act. This cuts across a wide range of regulatory schemes - environmental protection, primary production, water management, heritage, tourism - and allows an officer under one Act to request information that is relevant to the objects of this Act. The recipient must comply even if the information would not otherwise be obtainable under the relevant Act. This can create inter‑agency obligations.

Section 11(2)(c) and (d) allow regulations to prohibit or restrict activities despite any other Act or law. This is an exceptionally strong override power. It could, for example, prohibit a use that is otherwise lawful under a primary production licence or a liquor licence. This potential for conflict is not resolved in the Act; the regulation would prevail over the other Act by virtue of the “despite” clause.

The Act was originally enacted in 2012 (No 38 of 2012) and came into operation on 18 January 2013. The principal amendments were made by the Planning, Development and Infrastructure Act 2016 (No 14 of 2016), with the amendments commencing on 19 March 2021. These amendments were necessary to update references from the repealed Development Act 1993 and the Development Plan system to the new PDI Act regime and the Planning and Design Code. Specifically, the definition of “Planning Strategy” in s 3(1) was deleted, and the definitions of development authorisation and relevant authority were amended to refer to the PDI Act instead of the Development Act. Section 3(2) was amended to replace the reference to “provisions of the Development Plan” with “provisions of a state planning policy”. Section 4(2) was changed from “a relevant Act for the purposes of the Development Act 1993” to “a character preservation law” under the PDI Act. Section 5 was amended to change the administering Minister from the Minister under the Development Act to the Minister responsible for the PDI Act.

Section 8 received multiple amendments: references to “Development Act 1993” were replaced with references to the PDI Act; the definition of prescribed allotment provisions in s 8(9) was inserted to replace an earlier reference to “the Development Plan”; and a new paragraph (c) was added to s 8(7) to clarify that the prescribed allotment provisions override the Planning and Design Code and s 132(2) of the PDI Act. Section 10(3) was amended to update the review assessment criteria (changing “Planning Strategy” to “state of the district” and adding references to the objects). Section 11(2) was amended to replace “Development Act 1993” with the PDI Act and to delete a former paragraph that referred to the Development Act.

Section 2 (the definition section) was omitted under the Legislation Revision and Publication Act 2002 on 19 March 2021, likely because its definitions were duplicated elsewhere or became obsolete. The legislative history table shows that no other amendments have been made. The Act remains relatively static since its 2012 inception, with the 2021 amendments being essentially machinery updates to align terminology with the new planning system.

The source text of the Act does not contain any references to litigation. There is no schedule or note listing cases that have interpreted the Act. This is not surprising given the Act’s narrow scope and the absence of a right of appeal against s 8 refusals (s 8(4)). The exclusion of appeal rights significantly limits the opportunity for judicial consideration of the Act’s meaning. Landowners aggrieved by a refusal under s 8 cannot seek merits review; the only possible avenue would be judicial review on administrative law grounds (e.g., jurisdictional error, procedural fairness), but the Act does not prevent that. However, such challenges would be rare and unlikely to generate reported case law.

In the absence of any cited litigation, it is reasonable to infer that the Act has not been the subject of reported decisions in South Australian courts or tribunals. The 2013 commencement and the 2021 amendments have not produced a body of interpretative case law. This may reflect the Act’s operation as a clear prohibition (s 8(5) says “must refuse”), leaving little room for dispute about its meaning, or it may reflect that affected landowners have not challenged refusals due to the high bar of judicial review. It is also possible that the State Planning Commission and councils have applied the Act in a way that has not generated appeals. Practitioners should be aware that the Act is effectively untested in court, so its precise contours (e.g., what constitutes “primarily for residential purposes” in the definition of residential development, or the meaning of “special character” as linked to state planning policy) have not been judicially settled.

Several provisions in the Act can catch the unwary. The most significant is the absolute bar on residential development on new allotments in the rural area outside rural living zones: s 8(5) states that the relevant authority “must refuse” if the application was made after the commencement of the section (18 January 2013). There is no exception, no discretion, and no power to impose conditions to mitigate impacts. Even if the development is low‑density or would have minimal character impact, the refusal is mandatory. The only way to have residential development on a newly created allotment is to locate it in a rural living area, and even then only if the minimum lot size provisions are met (s 8(7)).

Another trap is the no‑appeal clause in s 8(4). It removes the standard merits review for refusals under this section. A landowner cannot complain to the Environment, Resources and Development Court (or its equivalent under the PDI Act) about a refusal to grant development authorisation or a refusal to concur. This is a deliberate removal of a right that exists for most other planning decisions under the PDI Act. The only recourse is judicial review, which is narrower and more expensive.

The deemed condition in s 8(8) is another trap. Even if a landowner obtains development authorisation for a land division in the rural area outside rural living areas (for non‑residential purposes), the authorisation is automatically subject to a condition that the additional allotments will not be used for residential development. This condition is not expressed on the face of the authorisation but is imposed by force of the Act. A subsequent purchaser or lessee may be unaware of the condition, but it binds the land. Using the allotment for residential development would be a breach of the condition and potentially unlawful.

The definition of residential development in s 3(1) has two exemptions: a hotel/motel/temporary accommodation and a dwelling on land used primarily for primary production. These exemptions are narrow. For example, a bed‑and‑breakfast in a rural setting might fall within “temporary residential accommodation for valuable consideration” only if it is operated as a commercial accommodation business, not if it is simply a second home occasionally let. A dwelling on a small hobby farm may not satisfy “primarily for primary production purposes” if the primary production is minimal. The phrase “primarily for residential purposes” in the definition is also vague; a development that is partly residential and partly commercial may be classified as primarily residential based on floor area, value, or use intensity - creating uncertainty.

The broad regulation‑making power in s 11(2)(c) and (d) is a sleeping giant. Currently no regulations exist, but the power allows the Governor to prohibit or restrict any activity in the district despite any other law. This could be used to regulate noise, light, traffic, building materials, signage, or events - even if those activities are already regulated under other Acts. Because the power is “despite any other Act or law”, a regulation could override existing licences or approvals. Businesses in the Barossa Valley that rely on tourism, events, or processing should monitor any future regulations.

Finally, the information‑gathering power in s 9 is not limited to planning matters. Any person or body issuing a statutory authorisation under any Act can request information from an applicant or from a government authority to consider matters relevant to the objects of the Act. This could be used to delay or scrutinise applications under, for example, the Liquor Licensing Act, the Food Act, or the Environment Protection Act, if the activity in question could affect the special character of the district. The request must be complied with without reasonable excuse, and failure to comply is an offence.

Compliance with the Act requires careful attention to the land‑division restrictions, the information‑gathering provisions, and any future regulations. For any person proposing to develop land in the Barossa Valley district, the first step is to determine the location of the land on the deposited plan GP 4 of 2012: whether it is in a rural area, a rural living area, or a township. If the proposed development involves a division of land in the rural area that would create one or more additional allotments, s 8 applies. The applicant must then assess whether the additional allotments are intended for residential development.

If the land is in the rural area outside a rural living area and the application was made after 18 January 2013, the relevant authority must refuse authorisation for a residential subdivision (s 8(5)). If the applicant intends to use the allotments for non‑residential purposes (e.g., horticulture, viticulture, tourism accommodation that falls within the definition of “temporary residential accommodation”), then authorisation may be possible, but the applicant must obtain the concurrence of the State Planning Commission (if the relevant authority is not the Commission) or of the council (if the Commission is the relevant authority). The applicant should engage with the relevant authority early and be prepared to demonstrate that the proposed use is not “primarily for residential purposes” and that it aligns with the character values.

If the land is in a rural living area, the applicant must check whether the prescribed allotment provisions (the Development Plan minimum lot sizes in force on the introduction date) require a larger minimum allotment than the current Planning and Design Code. If so, the larger minimum applies, regardless of what the Code would allow. The applicant should obtain the relevant Development Plan provisions from the historical period (the day the Bill was introduced - the Act does not specify which day, but it would be in 2012) and compare them to the current minimum under the Code.

For any development authorisation that is granted for a rural area subdivision (outside rural living areas), the applicant must accept the deemed condition in s 8(8) that additional allotments will not be used for residential development. The applicant should ensure that any future sale or lease documents disclose this condition to avoid third‑party breaches.

If a person receives a request for information under s 9 from a person or body issuing a statutory authorisation under any Act, compliance is mandatory unless there is a reasonable excuse. The request must be in writing and must specify information needed to consider matters relevant to the Act’s objects. The recipient should respond promptly and fully, and should keep a record of the response. Failure to comply without reasonable excuse is an offence.

For local councils and government authorities, the duty in s 6(2) requires that all decisions made in the district further the Act’s objects. This means that even decisions outside the planning system - such as road closures, park management, or event approvals - should take account of the character values. Councils should train relevant staff on the Act’s requirements.

Given the potential for future regulations under s 11(2)(c) and (d), anyone undertaking activities in the district should monitor the South Australian Government Gazette for any regulations that prohibit or restrict activities. The regulations could come into effect with little notice and could override existing approvals. Keeping up to date with the character preservation requirements is essential. Finally, the Minister must review the Act within five years of commencement, and although one review has presumably occurred, future reviews may lead to amendments or new regulations. Practitioners should track any review reports tabled in Parliament.