Linear Parks Act 2006

Linear park is defined in section 3 by reference to a plan: either the River Torrens Linear Park as defined by the River Torrens Linear Park Public Lands Plan (Plan No 13 of 2007 deposited 2 March 2007, as varied), or another linear park as defined by a plan deposited in the GRO by the Minister and identified by Gazette notice. This is a registration-based definition: a linear park is not simply a corridor of land declared by the Minister but a specific mapped area recorded at the GRO. The definition is thus concrete and publicly verifiable.

Plan is a central concept. It means either the River Torrens Linear Park Public Lands Plan (which is the original plan for the Torrens park) or a plan defining another linear park deposited by the Minister. The Minister may also vary a plan by instrument deposited in the GRO (section 4(3)). The distinction between “Plan” and “plan” in the legislation’s history reflects the 2009 amendment that generalised the Act. The plan must be available for public inspection at the Minister’s department and relevant council offices (section 8(3)). Plans can be substituted entirely (section 8(1)).

SA planning portal was inserted by the 2017 amendment. This is the online system under the Planning, Development and Infrastructure Act 2016. The Minister must publish notice of a proposed linear park or variation on the portal (section 4(2)(a), 4(4)(b)(i)). This replaces previous paper-based notice requirements and reduces geographic barriers to public access.

Road area is not defined in the legislation but appears on a plan as a specified area. Such areas are taken to be public roads established under the Roads (Opening and Closing) Act 1991 (section 6(1)). This deeming provision avoids the need for separate road opening processes. The Minister can vary a plan to ensure consistency with that Act (section 6(2)), and such variation overrides other provisions of the Act (section 6(3)). This gives the Minister flexibility to align park boundaries with road processes.

Sale prohibition in section 5 is not absolute: it exempts sales or disposals to a State agency. “State agency” is broadly defined in section 3 to include the Crown, Ministers, agencies, departments, councils, and any person or body acting under Crown authority, minus any excluded by regulation. This means land can be moved between government entities freely without parliamentary resolution. The policy rationale is presumably to allow government efficiency in land swaps, but it creates an asymmetry: land can be transferred to another public body without scrutiny, but any private buyer requires both houses of Parliament. This raises the cost of re-purposing linear park land for private uses, which may be intended to preserve open space but also reduces the potential for competitive neutral use of public land.

The Act directly affects several classes of actors:

The Minister is the primary decision-maker. The Minister has the power to establish linear parks, vary plans, acquire land, exercise council road powers, and deposit instruments at the GRO. The Minister must also publish notices on the SA planning portal and consider submissions (section 4(2), (4)). The Minister cannot remove land from a linear park without a parliamentary resolution (section 4(4)(c)). The Minister is also subject to a duty to keep copies of plans available for public inspection (section 8(3)).

Councils are directly affected in multiple ways. A linear park may include council-owned land, and the Minister must give written notice to the council before establishing or varying a linear park that includes council land (section 4(2)(b), 4(4)(b)(ii)). Councils may make submissions without needing to comply with the Local Government Act 1999 or other laws (section 4(5)) - a procedural exemption that may reduce internal approval burdens but also denies councils the protection of their own statutory processes. Councils must keep copies of plans at their principal office (section 8(3)(b)). The Minister can also override council road powers under section 6(1a) by stepping into the council’s shoes for roads within a linear park. This reduces local control over roads. The Local Government Association must be notified of proposed regulations (section 10(3)), giving it a consultative role.

State agencies are affected because they can receive linear park land without parliamentary resolution (section 5(2)). They are also potentially subject to inclusion of their land in a linear park if the Minister controls it (section 4(1)(a)(ii)). For example, land owned by a state-owned corporation could be brought into a linear park without compensation if it is already under Crown control. The definition of State agency is broad and can be expanded by regulation.

Landholders adjacent to or within proposed linear parks may face compulsory acquisition under section 9, subject to the Land Acquisition Act 1969, which provides for compensation. Once a notice of intention to acquire is served, damaging the land becomes an offence with significant penalties. The Act does not provide additional compensation beyond what the Land Acquisition Act provides.

The public are intended beneficiaries under the objects. They have the right to inspect plans, make submissions during establishment and variation processes (within a window of 3 to 6 weeks set by the Minister), and use the linear parks as public open space. However, the Act confers no private right of action or public trust obligation beyond administrative law remedies for procedural failure.

Police are granted power under section 9(3) to enter land and use reasonable force to prevent an offence of wilful damage after a notice of intention to acquire. This is a specific statutory power that would not otherwise exist.

The Act imposes duties on the Minister, councils and others, and confers certain rights.

Minister’s duties:

• Must publish notice of proposed linear parks and variations on the SA planning portal (sections 4(2)(a), 4(4)(b)(i)).
• Must give written notice to affected councils (sections 4(2)(b), 4(4)(b)(ii)).
• Must consider submissions made within the specified period (3-6 weeks) (sections 4(2)(c), 4(4)(b)(iii)). The Act does not require the Minister to accept submissions or provide reasons, only to “give consideration to”. This is weak procedural fairness; failure to consider could be challenged but the scope of judicial review is constrained.
• Must deposit any instrument varying a plan at the GRO (sections 4(3), 4(4), 6(2), 7(1)).
• Must give public notice within a reasonable time after depositing an instrument (section 8(2)).
• Must ensure copies of plans are kept at the principal office of the department (section 8(3)(a)).
• Before making regulations, must give the Local Government Association notice and consider its submissions (section 10(3)).

Councils’ duties:

• Must consider submissions? No - councils are not required to do anything beyond making submissions if they choose. But they must keep copies of plans available for public inspection at their principal office (section 8(3)(b)). This is an administrative duty.

Rights of the public:

• Right to inspect plans at the Minister’s department or council office (section 8(3)).
• Right to make submissions within the consultation period established by the Minister (section 4(2)(c), 4(4)(b)(iii)). The period is between 3 and 6 weeks, at the Minister’s discretion.
• No right to prevent a linear park from being established or varied if the Minister has followed the process.
• No right to compensation for land dedicated to a linear park under section 4(6) if it was already public land; compensation only arises under the Land Acquisition Act 1969 for compulsory acquisition of private land (section 9(1)).

Minister’s powers:

• Can establish linear parks on Crown land, land controlled by the Minister or another Crown agency, or land owned/controlled by a council (section 4(1)).
• Can vary plans (subject to restrictions) (section 4(3), (4)).
• Can exercise any power that a council could exercise under any Act or law in relation to a road area (section 6(1a)). This is extraordinarily broad: it includes powers under the Local Government Act 1999 (e.g., making by-laws, closing roads, imposing traffic controls) and any other Act, such as the Road Traffic Act 1961. The Minister can, by regulation, modify or exclude provisions of those Acts when exercised (section 6(1b)). This creates a potential parallel regulatory system for linear park roads.
• Can enter, occupy and use land within the linear park in connection with exercising road powers (section 6(1c)).
• Can acquire land under the Land Acquisition Act 1969 (section 9(1)).

The Act creates a single criminal offence. Under section 9(2), if a notice of intention to acquire land for a linear park has been served, a person who wilfully damages the land is guilty of an offence. The maximum penalty is $100,000 or imprisonment for 12 months. This is a substantial penalty, reflecting the seriousness of prejudicing an acquisition process. The offence is one of wilful damage; accidental or negligent damage may not be covered. The burden of proof would be on the prosecution to prove wilfulness.

Enforcement is supported by a power for police officers to enter the land and use necessary or expedient force to prevent the commission of that offence (section 9(3)). This power arises on the Minister’s reasonable suspicion that a person may contravene subsection (2). Notably, there is no requirement for a warrant. Police can enter private land (which by then is subject to an acquisition notice) based solely on the Minister’s suspicion. This is a significant expansion of police entry powers, though limited to land where acquisition has been commenced.

There is no other penalty provision in the Act. Regulations made under section 10 could create additional offences with penalties, but the Act itself is sparse. The Act does not provide for infringement notices, civil penalties, or orders for remediation. Enforcement of linear park rules (e.g., by-laws for road areas) would be through the powers delegated to the Minister under section 6(1a) - that is, through the underlying Acts the Minister steps into council shoes to enforce. For example, if the Minister exercises a council’s power under the Local Government Act 1999 to make by-laws about parks, breaches would be penalised under that Act. The Linear Parks Act itself is primarily enabling and protective, not punitive.

The Act contains several provisions that modify or override other laws.

Local Government Act 1999: Councils are exempt from compliance with the Local Government Act or any other law when making submissions under section 4 (section 4(5)). This means a council can make a submission about a linear park without following its normal meeting or delegation procedures. The Act also allows the Minister to exercise council road powers under section 6(1a), effectively displacing the council from its own statutory functions within the linear park. The Minister can be taken to be the council for the purpose of those Acts. This shifts accountability from locally elected councillors to a state Minister.

Roads (Opening and Closing) Act 1991: A road area in a linear park plan is taken to have been established under this Act, bypassing the usual opening process (section 6(1)). The Minister may also vary the plan to ensure consistency with any road process under that Act (section 6(2)). This interaction preserves integrity between the linear park mapping and the formal state road network.

Land Acquisition Act 1969: Any compulsory acquisition for increasing the area of a linear park occurs under this Act (section 9(1)). This incorporates the compensation and procedural provisions of that Act. The Linear Parks Act adds the criminal offence for wilful damage after notice, which supplements the Land Acquisition Act’s protections.

Civil Liability Act 1936: The Minister is taken to be a road authority for the purposes of section 42 of that Act (section 6(1d)). This means the Minister can be liable for failure to maintain the road area in a safe condition, but also may be protected by the “special protection” provisions of section 42 that limit liability for non-repair in certain circumstances. This is a careful move: it extends statutory protection to the Minister as a road authority, consistent with the policy that the Minister assumes council functions.

Planning, Development and Infrastructure Act 2016: The SA planning portal is referenced as the medium for public notice of proposed linear parks and variations (section 4(2)(a)). This aligns the Act with modern e-planning systems. However, the Act does not require development approval for linear parks; they are established by plan, not planning consent. There is potential conflict if a linear park includes land subject to a development authorisation; section 4(6) says land may be included despite another dedication, but it does not say it overrides existing development rights. That may be left to the Land Acquisition Act to extinguish rights.

Other Acts generally: Under section 7, the Minister may vary a plan to ensure consistency with any Act enacted after 4 August 2006 (the date of assent). This power is despite any other section, meaning it overrides the normal variation restrictions (e.g., the requirement for parliamentary resolution to remove land). This is a broad override clause. It allows the Minister to unilaterally realign linear park boundaries to comply with new legislation, potentially removing land without parliamentary approval. This was inserted as a practical measure to avoid conflicts, but it reduces the protection of section 4(4)(c) for post-2006 Acts. The Minister should use this power only to ensure consistency, but the phrase is ambiguous.

The Act was originally passed as the River Torrens Linear Park Act 2006 (Act No 7 of 2006), commencing 4 August 2006. It repealed the River Torrens Acquisition Act 1970. The long title originally referred only to the River Torrens Linear Park.

In 2009, the River Torrens Linear Park (Linear Parks) Amendment Act 2009 (Act 80/2009) substantially overhauled the Act. Commencing 1 March 2010, it: (1) broadened the long title to refer to linear parks generally; (2) inserted a definition of “linear park” that allowed for other linear parks beyond the original Torrens park; (3) deleted the old definitions of “Plan” and “River Torrens Linear Park” and inserted “plan” and “River Torrens Linear Park Public Lands Plan”; (4) substituted section 4 to reflect the generalised scheme; (5) amended sections 5, 6, 7, 8, 9 to reference the new plan concept. This was the key expansion from a single park to a generic linear park system. The 2009 amendment also added the requirement for the Minister to give notice to councils and consider submissions (now in s4(2)), though at that stage the SA planning portal was not yet used; notice was likely by Gazette or other means.

In 2017, the Linear Parks (Miscellaneous) Amendment Act 2017 (Act 59/2017) commenced 12 December 2017. Key changes: (1) inserted a new section 2 with objects and purposes (replacing omitted version); (2) inserted definition of SA planning portal and amended section 4 to require notice on the portal instead of or in addition to other methods; (3) amended section 4(1) to clarify categories of land that could be included; (4) substituted section 4(2) to require notice on SA planning portal and written notice to councils; (5) inserted new subsections (4)(c) and (5) and (6) into section 4 - subsection (4)(c) now requires parliamentary resolution for removal of land, (5) exempts councils from other Acts when making submissions, (6) allows land to be included despite other dedications; (6) inserted extensive road powers at section 6(1a)-(1d); (7) amended section 6(1) and (2) to clarify road area provisions. The 2017 amendment significantly strengthened the Minister’s road management role and formalised public consultation via the SA planning portal.

The source text does not cite any litigation. No cases are mentioned in the Act or its legislative history. This is consistent with the Act being a relatively obscure piece of land management machinery. The Act may have been litigated in the South Australian Supreme Court or the Environment, Resources and Development Court, but nothing appears in the source. Likely disputes could arise over the adequacy of consultation (section 4(2)), the exercise of road powers (section 6(1a)), or the Minister’s decisions to vary plans. However, the Act sets low procedural thresholds (merely “give consideration to” submissions) and includes broad override powers (sections 6(3), 7(2)), which may limit grounds for challenge. Compulsory acquisition matters would be litigated under the Land Acquisition Act 1969, not this Act. The penalty provision in section 9(2) is a criminal offence that could be prosecuted, but no reported cases are referenced.

Several provisions contain traps for the unwary.

Minister as council substitute for roads. Section 6(1a) allows the Minister to exercise any power a council could exercise under any Act or law in relation to a road area. This includes by-law making, traffic management, tree planting, and even closing roads. A council may be surprised to find the Minister controlling roads within its area without council consent. Moreover, the Minister can modify or exclude provisions of those Acts by regulation (section 6(1b)), creating bespoke road rules for linear parks. The Minister is also deemed a road authority for civil liability, which means claims for injuries on linear park roads lie against the Minister, not the council - but if the Act does not adequately indemnify the Minister, liability exposure may constrain road management choices.

Parliamentary resolution for removal of land. Section 4(4)(c) says land cannot cease to be included in a linear park except by resolution of both Houses. This seems absolute. However, section 7 allows the Minister to vary a plan to ensure consistency with a later Act, which could effectively remove land without a resolution. And section 6(3) says an instrument under subsection (2) (to ensure consistency with road processes) has effect despite any other section - that could also override the parliamentary resolution requirement. So the guarantee of parliamentary scrutiny for removal is not ironclad; the Minister can bypass it using the consistency powers. This is a gotcha for anyone relying on the resolution requirement as a safeguard.

Council land can be included without council consent. The Minister only needs to give notice to the council and consider submissions. If the council objects, the Minister can still proceed. A council that owns land cannot prevent it from being included in a linear park, even if that land was acquired for other purposes (e.g., a future depot). The council cannot sell it to a private party because section 5(1) prohibits sale, but it could transfer it to another State agency under section 5(2) - which is itself a trap: a council may inadvertently be deemed a State agency and lose control of its land without compensation. The definition of State agency includes a council, and section 5(2) permits sale to a State agency. So a council could be directed to transfer linear park land to another agency without parliamentary oversight.

Damage offence extends to third parties. Once a notice of intention to acquire land is served, any person - not just the owner or occupier - commits an offence for wilful damage. A neighbour trimming trees that overhang, or a utility doing excavation, could be criminally liable. The police entry power (section 9(3)) allows warrantless entry to prevent damage, which could intrude on property rights before any conviction.

Three to six week submission window. The Minister sets the period within which submissions must be made. That could be as short as three weeks. For complex proposals, especially those affecting many stakeholders, this is tight. Failure to submit within that window means submissions can be ignored. The Act requires the Minister only to consider submissions made “within a period … specified”. There is no obligation to consider late submissions.

Plan substitution versus variation. Section 8(1) allows a plan to be varied by substitution of a new plan. The legislative history shows this was amended to allow substitution. A substitution is effectively a new plan, but the Act does not require the consultation process for a substitution if the Minister frames it as a variation? The wording is ambiguous. If the Minister “varies” the plan by substituting a new plan, is that a variation under section 4(3) or an independent power? The safer view is that a substitution is still a variation subject to the same restrictions, but a broad reading could allow the Minister to circumvent consultation by presenting a completely new plan as a “substitution variation”. The legislative history notes that section 8(1) was amended by the 2009 Act to insert “by the substitution of a new plan”. This suggests the intention was to allow wholesale replacement as a type of variation.

Compliance with the Linear Parks Act depends on the actor.

For the Minister (the primary actor): to establish a new linear park, the Minister must ensure the land falls within the categories in section 4(1) (Crown land, land controlled by a Minister or Crown agency, or council land). The Minister must publish notice of the proposed linear park and the proposed plan on the SA planning portal. If council land is included, written notice must be given to that council. The Minister must set a period of 3 to 6 weeks for submissions and genuinely consider any that are received. The plan defining the linear park must then be deposited in the GRO. The same process applies for variations that add land (section 4(4)). To remove land from a linear park, the Minister must obtain a resolution passed by both Houses of Parliament, unless the removal is done under section 6(2) or 7 (consistency with road processes or later Acts). The Minister should ensure that any instrument deposited in the GRO is followed by public notice within a reasonable time (section 8(2)). For road areas, the Minister should determine whether to exercise council powers and, if so, ensure consistency with the regulations (which may modify underlying Acts). The Minister must also keep plan copies available for public inspection.

For councils: If a council receives notice from the Minister about a proposed linear park or variation affecting its land, it should consider making a submission within the specified period. The council is not bound by its own Local Government Act procedures when making the submission (section 4(5)), but it should still record its decision appropriately. The council must ensure that copies of any plan of a linear park within its area are available for inspection at its principal office (section 8(3)(b)). The council should also be aware that the Minister may exercise road powers within the linear park, and the council should coordinate with the Minister rather than trying to assert its own powers over those roads. If the council wishes to transfer linear park land to another State agency, it can do so without parliamentary resolution (section 5(2)), but it should ensure the recipient is indeed a State agency under the definition.

For State agencies (other than councils): If a State agency owns or controls land that the Minister wishes to include in a linear park, the agency should cooperate with the Minister’s proposal. No compensation is payable if the land is already Crown land. If the agency wishes to acquire linear park land, it can do so under section 5(2) without parliamentary resolution. The agency should verify its status as a State agency.

For the public: To participate in the establishment or variation of a linear park, check the SA planning portal for notices. Prepare a submission within the period specified by the Minister (generally 3 to 6 weeks). The submission should address the merits or concerns. The Act does not guarantee that submissions will be accepted, only considered. After a linear park is established, the public may inspect the plan at the Minister’s department or council office.

For persons affected by acquisition: If a notice of intention to acquire land is served under section 9(1) (read with the Land Acquisition Act 1969), do not damage the land. This includes activities like cutting down trees, demolishing structures, or altering the topography. Doing so could result in prosecution with a maximum penalty of $100,000 or 12 months imprisonment. Police may enter the land to prevent such damage. Continue normal maintenance? The offence is for “wilful damage”, so reasonable upkeep is likely not captured, but caution is advised. Seek legal advice on what constitutes damage.

General compliance note: The Act is administered by the Minister, and regulations may be made under section 10. Practitioners should monitor the SA legislation website for new regulations and any variations to existing plans. The Act’s short length means many details are left to the Minister’s discretion, making it important to track executive actions (plan deposits, Gazette notices). The Local Government Association should ensure it is notified of proposed regulations to exercise its submission right.