Character Preservation (McLaren Vale) Act 2012

Special character - The Act defines “special character” in s 3(2) as the identity and characteristics of the district and locations within it, having regard to relevant provisions of a state planning policy under the PDI Act and the “character values” listed in s 7. Those character values are: (a) the rural and natural landscape and visual amenity; (b) heritage attributes; (c) built form of townships in relation to the district; (d) viticultural, agricultural and associated industries; and (e) scenic and tourism attributes. These values are not exhaustive but are the statutory touchstones for assessment.

District - The geographical area defined by plan GP 3 of 2012, deposited in the General Registry Office at Adelaide as it existed on 26 June 2012 (s 3). This is a fixed boundary; any future changes to the plan are irrelevant unless the Act is amended.

Rural area - The part of the district not including townships (s 3). Townships are marked on the same plan. This distinction is critical because the land division limitations in s 8 apply only to the rural area. Subdivision within townships is not caught by s 8, though it may still be constrained by the PDI Act and the objects of this Act.

Residential development - Defined in s 3 as development primarily for residential purposes, but expressly excluding: (a) use of land for a hotel or motel or other temporary residential accommodation for valuable consideration; and (b) a dwelling for residential purposes on land used primarily for primary production purposes. This carve-out is important because it means farmhouses and accommodation ancillary to agriculture are not prohibited even if they involve a dwelling on a newly created allotment, provided the primary use of the land is primary production. However, the dwelling must be “on land used primarily for primary production purposes” - if the land is itself a new allotment created by subdivision, the primary use of that allotment will be relevant.

Development authorisation - Has the same meaning as in the PDI Act (s 3). This includes planning consent, building rules consent, and any other approval required under that Act.

Relevant authority - The body determined under the PDI Act for the purpose of an application under that Act (s 3). This could be a council, the State Planning Commission, or an accredited private certifier.

Relevant council - A council whose area includes part of the district (s 3). In practice this is the City of Onkaparinga, though the Act does not name it.

Statutory authorisation - For the purposes of s 9, this means an approval, consent, licence, permit or other authorisation granted or required under any Act (s 9(2)). This is expansive and could cover water licences, mining approvals, native vegetation clearance, and many others.

Objects and their effect - Section 6(2) requires any person or body involved in administering an Act to have regard to and seek to further the Act’s objects when exercising powers and functions in relation to the district. This duty applies beyond planning decisions and extends to any government decision-maker whose actions affect the district. It is a mandatory consideration that could be enforced by judicial review.

The Act most directly affects landowners in the rural area of McLaren Vale who wish to subdivide their land. Any proposal to create one or more additional allotments is subject to s 8. If the new allotments are intended for residential development, the application must be refused (s 8(5)). This effectively eliminates the possibility of creating new residential lots in the rural area, which has significant implications for land value, estate planning, and farming succession. For example, a vintner who wants to split a property to give a child a separate dwelling site cannot do so if the new allotment would be used primarily for residential purposes. Even if the subdivision is for agricultural expansion or conservation, the need for concurrence from the State Planning Commission (or council) adds cost and uncertainty.

Developers and investors face a prohibitive barrier to creating residential lots in the rural area. This can distort land markets by shifting development pressure to townships within the district or to neighbouring regions. Hotels, motels and temporary accommodation are excluded from the definition of “residential development”, so tourist accommodation developments may still be possible, but they are not a substitute for permanent housing supply.

Relevant councils (likely the City of Onkaparinga) are affected in two ways. First, they have a concurrence role when the State Planning Commission is the relevant authority (s 8(3)). Second, they must be consulted before regulations are made under s 11 and during the five-year review (s 10(2)). They also bear administrative costs in processing applications and participating in concurrence.

The State Planning Commission is a gatekeeper for most s 8 applications, either as the concurring body or as the relevant authority itself (and then needing council concurrence). The Commission’s workload increases, and it must apply the Act’s objects and character values.

Applicants for development authorisation under the PDI Act are the most directly impacted: they face mandatory refusal in certain cases and, for all other s 8 applications, cannot appeal a refusal (s 8(4)). This removes the usual merits review avenue, concentrating power in the primary decision-maker.

Other government authorities issuing licences or approvals under other Acts are affected by s 9. They may be required to provide information about applicants or their own decisions. Also, under s 6(2), they must have regard to the Act’s objects. This introduces a new layer of mandatory consideration into, for example, water allocation or mining approval processes.

The community in McLaren Vale is the intended beneficiary of the preservation of character, but also bears the costs of constrained housing supply and potentially higher land prices. The Act’s review (s 10) is meant to assess these family, social and economic impacts, but the statutory review appears overdue.

Duty to refuse residential subdivisions in rural area - The most onerous duty is on the relevant authority under s 8(5): if a proposed development in the rural area will create additional allotments to be used for residential development, the relevant authority must refuse to grant development authorisation. This is a non-discretionary bar. It applies only if the application for development authorisation for the division of land was made after the Act’s commencement (18 January 2013). If the application predates that date, s 8(5) does not apply, though s 8(7) may impose a prospective condition.

Duty to seek concurrence - For s 8 applications not caught by s 8(5) (non-residential subdivision in rural area), the relevant authority must obtain concurrence from the State Planning Commission (or council if the Commission is the relevant authority) before granting authorisation (s 8(2)-(3)). This is a mandatory step; granting without concurrence would be ultra vires. The Act does not prescribe any criteria for granting or withholding concurrence, so the concurring body has broad discretion, but must have regard to the Act’s objects (s 6(2)).

Duty to impose condition - If development authorisation is granted for a s 8 application made after commencement, the authorisation is taken to be subject to a condition that the additional allotments will not be used for residential development (s 8(7)). This condition is automatic and cannot be waived. Breach of the condition may be enforceable under the PDI Act (as a breach of a development authorisation condition).

Duty to provide information - Section 9 imposes a duty on an applicant for any statutory authorisation under any Act that relates to or would affect the district, and on government authorities, to provide information requested by the person or body responsible for issuing that authorisation. The request must be in writing and must be for information to enable consideration of any matter relevant to the Act’s objects. The recipient “must not, without reasonable excuse, fail to comply”. The Act does not prescribe the penalty for non-compliance, but regulations may prescribe offences and fines (s 11(2)(e)). Additionally, failure to comply may be a basis for the authorisation body to refuse the application or delay processing.

Right to apply for development authorisation - Landowners retain the right to apply for development authorisation for any development, but the Act constrains the outcome. There is no right to have an application assessed favourably if s 8(5) applies, and no right to have concurrence granted.

Absence of appeal right - Section 8(4) provides that no appeal under the PDI Act lies against a refusal by a relevant authority to grant development authorisation or a refusal by the State Planning Commission or a council to concur. This is a significant restriction on procedural rights. It likely does not bar judicial review for jurisdictional error, but the statutory avenue for merits review is closed.

Duty of decision-makers to have regard to objects - Section 6(2) requires any person or body involved in the administration of an Act, when exercising powers and functions in relation to the district, to have regard to and seek to further the objects of this Act. This is a broad duty extending across government. A decision-maker who ignores the objects may have their decision challenged on grounds of failure to consider a mandatory relevant consideration.

The Act itself does not create criminal offences or civil penalties directly. Instead, enforcement relies on two mechanisms: (1) the Planning, Development and Infrastructure Act 2016, which governs compliance with development authorisations and conditions; and (2) the regulation-making power under s 11.

Regulation penalties - Section 11(2)(e) empowers the Governor to prescribe fines not exceeding $10,000 for offences against the regulations. The regulations may also prohibit or restrict specified activities in the district despite any other Act or law (s 11(2)(c)), and require compliance with prescribed requirements or conditions (s 11(2)(d)). This is a broad delegation that could be used to create new offences beyond the current text. As of the source text, no such regulations are recited, but they could exist in practice. A search of SA legislation would be needed to ascertain whether regulations have been made.

Failure to provide information - Section 9(1) says the person or authority must not, without reasonable excuse, fail to comply with a request for information. However, no penalty for non-compliance is stated in the Act. It is arguable that non-compliance could be dealt with via contempt or as an offence under regulations if one is made. Alternatively, the body issuing the statutory authorisation might simply refuse to process the application until the information is provided. This creates practical leverage without direct penal consequences.

Breach of development authorisation condition - The automatic condition under s 8(7) that additional allotments not be used for residential development is enforceable as a condition of the development authorisation under the PDI Act. The PDI Act contains its own enforcement provisions, including stop work orders, enforcement orders, and fines for non-compliance. If a landowner uses an allotment for residential development in breach of the condition, they may face enforcement action under that Act.

Ultra vires grants of authorisation - If a relevant authority grants development authorisation in breach of s 8(5) (mandatory refusal for residential subdivisions) or without required concurrence, the authorisation may be invalid and subject to judicial review. Third parties (such as neighbours or community groups) may have standing to challenge such decisions.

Absence of compensation - The Act does not provide for compensation for loss of development rights. Landowners whose land is devalued by the operation of s 8 have no statutory claim. This may raise potential arguments about acquisition of property on just terms under the Australian Constitution if the restriction is sufficiently severe, but no such case has been decided in this context.

Review and accountability - The Minister is required to review the Act within five years of its commencement (s 10). That period expired around 2018. The source text does not indicate whether the review was completed or tabled. Failure to comply with s 10 is not penalised but is a statutory duty that could be enforced through mandamus, though this would be unusual. The lack of an up-to-date review may indicate that the Act’s impacts have not been formally assessed.

Planning, Development and Infrastructure Act 2016 (PDI Act) - This is the principal interaction. Section 4(2) declares that the Character Preservation Act is a “character preservation law” for the purposes of the PDI Act. That term appears in the PDI Act to give special status to such laws, requiring the Planning and Design Code to be consistent with them. Section 7(2) of this Act directs that the character values are relevant to the policies in state planning policies and the Planning and Design Code. Section 5 places administration under the Minister responsible for the PDI Act. The definitions of “development authorisation” and “relevant authority” are imported from that Act.

Section 8 uses the PDI Act’s mechanisms for land division. The refusal of authorisation under s 8(5) would be given effect through a decision under the PDI Act. The concurrence process in s 8(2)-(3) is a pre-condition to the exercise of the PDI Act power. The no-appeal provision in s 8(4) overrides any appeal rights that would otherwise exist under the PDI Act. This is a significant modification of the PDI Act’s regime.

Other Acts generally - Section 4(1) provides that this Act is in addition to and does not limit or derogate from other Acts, unless the contrary intention is expressed. So the Act supplements existing legislation; it does not replace it. However, the regulation-making power in s 11(2)(c) and (d) allows regulations to prohibit or restrict activities or impose conditions “despite any other Act or law”. This gives future regulations potential primacy over other legislation, including environmental, mining, or local government laws.

Development Act 1993 (now repealed) - The original Act amended the Development Act 1993 (see transitional provisions in Sch 1 Pt 3). The amendments included requiring compliance with this Act and review of Development Plans. Since the repeal of the Development Act and its replacement by the PDI Act, those amendments are no longer operative. The PDI Act amendments (made in 2021) updated references.

Local government legislation - Relevant councils have duties under this Act, but the Act does not create new planning powers for councils beyond the concurrence role. It also requires consultation with councils before making regulations (s 11(4)) and during the review (s 10(2)).

Water, mining, and other resource laws - Section 9 gives any body responsible for issuing a statutory authorisation under any Act the power to request information from applicants or government authorities. This could apply to the Minister for Water, the Department for Energy and Mining, or the Environment Protection Authority. Section 6(2) requires those bodies to have regard to the Act’s objects. This may mean that, for example, a mining lease application must be assessed in light of the effect on McLaren Vale’s character values.

The Character Preservation (McLaren Vale) Act 2012 was assented to on 8 November 2012 and commenced on 18 January 2013 (Gazette 17.1.2013 p75).

The only substantive amendment to the Act came via the Planning, Development and Infrastructure Act 2016 (No 14 of 2016). That amending Act’s Schedule 6, clauses 10 to 16, made a series of textual changes to update the Act to reflect the replacement of the Development Act 1993 with the PDI Act. These amendments commenced on 19 March 2021.

Key changes included:

• Definition updates - The definition of “development authorisation” was amended to refer to the PDI Act; the definition of “Planning Strategy” was deleted; and the definition of “relevant authority” was updated to refer to the body determined under the PDI Act (s 3(1)).

• References to character - Section 3(2) was amended to refer to state planning policies under the PDI Act rather than the Planning Strategy.

• Character preservation law - Section 4(2) was amended to refer to the PDI Act rather than the Development Act.

• Administration - Section 5 was amended to refer to the Minister responsible for the PDI Act.

• Character values - Section 7(2) was amended to refer to state planning policies and the Planning and Design Code under the PDI Act.

• Land division - Section 8(1) was amended to refer to the PDI Act; ss 8(2), (3) and (4) were amended to replace references to the Development Assessment Commission with the State Planning Commission.

• Review and regulations - Section 10(3) and s 11(2) were updated to refer to the PDI Act.

Additionally, under the Legislation Revision and Publication Act 2002, certain provisions were omitted: section 2 (which was a commencement section) and Parts 1 and 2 of Schedule 1 (which contained the amendments to the Development Act 1993 that are now spent). The long title was also amended under that revision Act.

The Act’s statutory review under s 10 was due within five years of commencement (i.e., by 18 January 2018). No amendment has been made to extend or alter that review period. The source text does not record whether the review was conducted. This is a notable gap in the legislative history: a mandatory review appears overdue, which could expose the Minister to potential legal challenge or parliamentary criticism.

The source text does not name any court cases or tribunal decisions concerning the Character Preservation (McLaren Vale) Act 2012. This could indicate that the Act has not been directly litigated, or that disputes have been resolved without reported judgments. However, several features of the Act create a high potential for litigation, which may have occurred in an undisclosed form.

No appeal under the PDI Act - Section 8(4) expressly removes the right of appeal under the PDI Act against a refusal to grant development authorisation or a refusal to concur. This would prevent the Environment, Resources and Development Court from hearing a merits review. However, the privative clause is unlikely to bar judicial review for jurisdictional error. If a relevant authority misinterpreted s 8(5) (e.g., by refusing a subdivision that did not involve “residential development” as defined), or if a concurring body acted for an improper purpose, an aggrieved applicant could seek review in the Supreme Court. No such case is recorded in the source.

Definitional disputes - The definition of “residential development” is central. Disputes could arise about whether a proposed dwelling is “primarily for residential purposes” and whether the land is “used primarily for primary production purposes”. A challenge to a refusal or a condition under s 8(7) could test these boundaries. Similarly, the distinction between “rural area” and “township” could be contentious, especially if the deposited plan is ambiguous.

Concurrence decisions - The Act provides no criteria for granting or withholding concurrence, only that the State Planning Commission (or council) must decide. Such a broad discretion is susceptible to challenge for unreasonableness or failure to consider the objects. Again, no case is cited.

Section 9 information requests - If a government body requests information under s 9, a recipient could challenge the scope or validity of the request, arguing that it is not relevant to the Act’s objects. The reasonable excuse defence could be litigated.

Constitutional arguments - The Act’s restriction on land use without compensation could raise an acquisition of property argument under s 51(xxxi) of the Constitution if the restriction is so severe as to amount to an effective acquisition. For example, a landowner whose property is entirely sterilised from residential development might argue that they have been deprived of a substantial incident of ownership. The High Court has not considered this Act, but such arguments have been run in other planning contexts with mixed success.

Absence of review - The Minister’s failure to conduct the five-year review under s 10 could be the subject of proceedings for mandamus, though this would be unusual and would require standing.

Given the Act’s age (over a decade) and the significant property interests affected, the absence of reported litigation is notable. It may suggest that the Act has been largely effective in deterring applications that would be refused, or that disputes have been settled without court intervention.

The definition of “residential development” is narrower than it appears. The exclusion for dwellings on land used primarily for primary production purposes means a farmhouse on a new allotment may still be permissible if the allotment itself is used primarily for primary production. But the critical question is: what is the primary use of the allotment? If a subdivision creates a small residential lot that is not genuinely used for agriculture, the exclusion will not apply. The whole provision turns on the primary use of the land, which is a factual question.

“Rural area” excludes townships, so subdivision in townships is not caught by s 8. However, the Act’s objects still apply, and the character values in s 7 include “the built form of the townships”. Development in townships will be assessed under the PDI Act, which must have regard to this Act as a character preservation law. So township development is not unrestrained, but the absolute bar on residential subdivisions does not apply.

Section 8(5) only applies if the application for development authorisation was made after the Act’s commencement (18 January 2013). The original text of s 8(5) said “if the application for the development authorisation for the division of land was made after the commencement of this section”. All subsequent amendments have preserved that phrase. This creates a grandfathering effect: any application made before that date is not subject to the mandatory refusal. This may still be relevant for pending applications or for developments that straddled the date.

Concurrence can be withheld for any reason or no reason. The Act does not specify criteria for concurrence. The State Planning Commission or council could refuse to concur based on its own view of the impact on character, even if the application complies with the PDI Act. There is no appeal from that refusal (s 8(4)). This gives the concurring body enormous power, with no statutory guidance beyond the objects.

The automatic condition under s 8(7) applies even if the authorisation is granted for non-residential purposes. If a landowner subdivides for, say, additional vineyard land, the new allotments are deemed to have a condition prohibiting residential development. This could later prevent building a farmhouse on those allotments unless the primary use changes. It is a permanent restriction that runs with the land.

Section 9 requests can come from any body issuing any statutory authorisation under any Act. This is not limited to planning approvals. A mining regulator, a water allocation officer, or a native vegetation council could demand information from an applicant or from a government authority. The power is wide and there is no stated limit on the type of information that can be required, only that it must be “to enable the person or body to consider any matter relevant to the objects of this Act”. There is no requirement for the requesting body to bear the cost of providing the information.

Regulations can override other laws. Section 11(2)(c) allows regulations to prohibit or restrict activities “despite any other Act or law”. This is a Henry VIII clause that could, in theory, override environmental protections, water rights, or even local government by-laws. Any such regulation would be a disallowable instrument, but the scope is very broad.

The statutory review is overdue and may have been ignored. The Act requires review within five years (by 2018). The source does not show any amendment to that date. If no review was done, the Minister is in breach of a statutory duty. This could be raised in litigation or parliamentary questions, and it undermines the accountability mechanism built into the Act.

No compensation for loss of development rights. Landowners bear the full cost of the restriction. This can be particularly harsh where a family farm’s value is based on subdivision potential. Estate planning strategies that rely on partitioning land among children become very difficult.

The definition of “division of land” is not defined in this Act. It adopts the meaning under the PDI Act, which includes both plan of division and community titles. A strata or community title scheme that creates additional allotments might be caught, depending on the PDI Act’s definition.

Assess whether the land is in the rural area or a township. If it is within a township (as marked on plan GP 3 of 2012), s 8 does not apply. However, the Act’s objects and character values must still be considered under the PDI Act. Obtain a copy of the deposited plan to confirm the boundary.

For any proposed subdivision in the rural area that will create one or more additional allotments, first determine the intended use of the new allotments. If any allotment is intended for residential development (and is not within the exclusion for primary production dwellings or hotels/motels), the application must be refused under s 8(5). There is no point proceeding with the application; it will be rejected. Instead, consider whether the subdivision can be structured to avoid residential use - for example, by creating allotments for agricultural expansion, conservation, or tourism accommodation (if that accommodation falls within the “hotel or motel” exclusion). Even then, concurrence is needed.

Engage early with the relevant authority (likely the council or State Planning Commission) and the concurring body. Because there is no appeal from a refusal to concur, it is critical to understand the concurring body’s view of the proposed development before lodging a formal application. This may involve pre-lodgement meetings and informal discussions. The State Planning Commission is likely to use its discretion widely, so a strong case linking the proposal to the character values (s 7) and the objects (s 6) is essential.

If the subdivision is for agricultural purposes, document the primary production use of each proposed allotment. This is important to argue that any dwelling on a new allotment would fall within the primary production exclusion in the definition of “residential development”. The exclusion applies only if the land is “used primarily for primary production purposes”. Ensure that the allotment will have a genuine agricultural use and that supporting evidence (e.g., farm business plan, soil capability assessment) is provided.

Comply with any requests for information under s 9. If a person or body responsible for issuing a statutory authorisation under any Act asks for information to consider matters relevant to the Act’s objects, provide it promptly. Failure to do so without a reasonable excuse is an offence or may result in the application being stalled. If the request is too broad or unclear, seek clarification rather than ignoring it.

If applying for a non-residential subdivision after s 8(7) will apply, be aware that the new allotments will have a deemed condition prohibiting residential development. This condition will run with the land. If future residential use is ever contemplated, it will require a separate development application under the PDI Act to vary or remove the condition, which would be extremely difficult given s 8(5). Plan accordingly.

For councils and the State Planning Commission, ensure that all decisions under the Act have regard to the objects (s 6(2)) and the character values (s 7). Record the consideration in the decision document. When acting as the concurring body, develop a policy or guidelines for when concurrence will be granted or refused, to ensure consistency and defend against possible judicial review.

For applicants under other Acts (e.g., mining, water), be aware that the decision-maker may request information under s 9 and must have regard to the objects. Provide information that demonstrates how the proposal will not detract from the character values or, if it will, how it nevertheless furthers the objects (including economic wellbeing).

Monitor regulations made under s 11. The Act allows regulations to prohibit or restrict activities with a penalty of up to $10,000. Such regulations could impose new restrictions beyond the current text. Check the SA legislation website periodically.

If considering a challenge to a decision, note that the PDI Act appeal route is closed for s 8 decisions. The only avenue is judicial review in the Supreme Court, which is limited to jurisdictional error and is expensive. Given the uncertainties in the Act, any challenge should be carefully assessed for prospects of success.