Part 5Statutory instruments

Part 5—Statutory instruments Division 1—Principles 57—Principles (1) The following principles must be taken into account with respect to the instruments created under this Part: (a) duplication between instruments, and between the various layers of policies and rules within instruments, is to be avoided; (b) rules should be based on clear performance outcomes, may include deemed to satisfy requirements (including requirements that can be met in a variety of ways), and should seek to apply excellence in design practices and techniques; (c) rules and standards should be proportionate, suited to relevant conditions, and insofar as is reasonably practicable and appropriate, seek to minimise regulatory burdens; (d) rules should aim to achieve consistency while providing for local variations that reflect special or unique character at the local level; (e) rules and standards must seek to protect the environment and the pursuit of ecologically sustainable development; (f) any other principles prescribed by the regulations. (2) Without limiting subsection (1), any rule, standard or other material that is dealt with or that is more suited to consideration under Division 3 should not be included in an instrument under Division 2. (3) If an inconsistency exists between the Planning Rules and the Building Rules, the Building Rules prevail and the Planning Rules do not apply to the extent of the inconsistency. (4) Subsection (3) does not apply— (a) in relation to a State heritage place or a local heritage place; or (b) in relation to a matter excluded from the operation of that subsection by the regulations; or (c) in any case, so as to negate the need to obtain planning consent for a change in the use of land under the terms of the relevant provisions of the Planning Rules (insofar as may be required under the other provisions of this Act). Division 2—Planning instruments Subdivision 1—State planning policies 58—Preparation of state planning policies (1) The Commission may prepare state planning policies on behalf of the Minister. (2) The state planning policies will collectively set out the State's overarching goals or requirements for the planning system (to be given effect through the other instruments under this Division). (3) A state planning policy may— (a) include any matter that is relevant to planning or development within the State by setting out or including policies, objectives or principles that are to be applied under the provisions of this Act or the terms of the state planning policy; and (b) include any other matter considered appropriate by the Minister; and (c) without limiting paragraphs (a) and (b), make provision for or with respect to any other matter contemplated by this or any other Act as being the subject of a state planning policy (to such extent, or in such manner, as the Minister thinks fit). (4) A state planning policy is not to be taken into account for the purposes of any assessment or decision with respect to an application for a development authorisation under this Act. 59—Design quality policy (1) The Minister must ensure that there is a specific state planning policy (to be called the design quality policy) that specifies design policies and principles that are to be applied in the other instruments under this Division. (2) The design quality policy must include specific policies and principles with respect to the universal design of buildings and places to promote best practice in access and inclusion planning. 60—Integrated planning policy The Minister must ensure that there is a specific state planning policy (to be called the integrated planning policy) that specifies policies and principles that are to be applied with respect to integrated land use, transport and infrastructure planning. 61—Adaptive re-use The Minister must ensure that there is a specific state planning policy (to be called the adaptive re-use policy) that specifies policies and principles that are to be applied to encourage and support the adaptive re-use of buildings and places. 62—Climate change policy The Minister must ensure that there is a specific state planning policy (to be called the climate change policy) that specifies policies and principles that are to be applied with respect to minimising adverse effects of decisions made under the Act on the climate and promoting development that is resilient to climate change. 62A—Biodiversity policy The Minister must ensure that there is a specific state planning policy (to be called the biodiversity policy) that specifies policies and principles that are to be applied with respect to enhancing biodiversity and minimising adverse effects of development on biodiversity within the State. 63—Special legislative schemes (1) The Minister must, by notice published in the Gazette, establish a state planning policy with respect to each special legislative scheme that— (a) in the case of a character preservation law—addresses (and seeks to preserve) the character values of each relevant character preservation area; and (b) in any other case—complies with requirements (if any) of the Act in question; and (c) addresses any other matter determined by the Minister to be relevant to the operation or objects of the Act in question insofar as it interacts with, or is relevant to, the operation and objects of this Act. (2) The Minister may, by subsequent notice published in the Gazette, amend a state planning policy under subsection (1). (3) The Minister must also, in acting under this section in relation to a particular Act, consult with the Minister who is responsible for the administration of that other Act. (4) A state planning policy, or an amendment to a state planning policy, under this section— (b) does not have effect until it is published on the SA planning portal; and (c) takes effect without the need to take any other steps under this Division and without the need to be approved under any other provision of this Act; and (d) does not need to be referred to the ERD Committee under this Part (and so is not subject to disallowance). Subdivision 2—Regional plans 64—Regional plans (1) Subject to subsection (2), the Commission must prepare a regional plan for each planning region. (2) If a joint planning board has been constituted in relation to an area of the State, the regional plan for that area must be prepared by the joint planning board and the Commission will prepare the regional plan for any balance of a planning region that remains outside the area in relation to which the joint planning board has been constituted. (2a) A regional plan must be consistent with any state planning policy (insofar as may be relevant to the relevant region or area). (2b) The regional plan for Greater Adelaide must— (a) consider how the population of Greater Adelaide (based on statistical projections, data and analysis) will be adequately provided with housing and services; and (b) ensure that sufficient areas of land are identified in the plan as appropriate areas to be developed for the provision of housing in Greater Adelaide. (2c) In connection with subsection (2b), the regional plan for Greater Adelaide must include consideration of the following matters in relation to Greater Adelaide: (a) the provision of infrastructure and the cost of infrastructure; (b) the availability of land and the economic viability of development; (c) the extent to which additional land for the provision of housing and services is required and the impact such provision would have on the environment and food production areas under section 7; (d) any variations to the environment and food production areas under section 7 required to give effect to the plan; (e) access to services for the projected population (of Greater Adelaide); (f) the preservation of significant environmental, landscape or agricultural areas; (g) land that is subject to hazards (such as the risk of flooding, bushfires or other events); (h) the protection or enhancement of significant State infrastructure. (3) Without limiting subsections (2b) or (2c), a regional plan must include— (a) a long-term vision (over a 15 to 30 year period) for the relevant region or area, including provisions about the integration of land use, transport infrastructure and the public realm; and (b) maps and plans that relate to spatial patterns that are relevant to the long‑term vision; and (c) such contextual information about the relevant region or area, including forward projections and statistical data and analysis, as may be determined by the Commission or required by a practice direction; and (d) recommendations about the application and operation of the Planning and Design Code in the relevant region or area; and (e) a framework for the public realm or infrastructure located within the relevant region or area; and (f) any other information or material required— (i) by another provision of this Act; or (ii) by the regulations; or (iii) in the case of a regional plan prepared by a joint planning board—by the Commission. (4) A regional plan may— (a) be divided into various parts that relate to subregions; and (b) include structure plans, master plans, concept plans or other similar documents. (5) A regional plan prepared by a joint planning board must comply with any practice direction issued for the purposes of this Subdivision by the Commission with the approval of the Minister. (6) A regional plan is not to be taken into account for the purposes of any assessment or decision with respect to an application for a development authorisation under this Act (except to the extent provided by this Act). Subdivision 3—Planning and Design Code 65—Establishment of code (1) There must be a Planning and Design Code. (2) The Commission will be responsible for preparing and maintaining the Planning and Design Code. 66—Key provisions about content of code (1) The Planning and Design Code must set out a comprehensive set of policies, rules and classifications which may be selected and applied in the various parts of the State through the operation of the Planning and Design Code and the SA planning database for the purposes of development assessment and related matters within the State. (2) In particular, the Planning and Design Code will— (a) incorporate a scheme that includes the use of zones, subzones and overlays; and (b) specify policies and rules that will— (i) govern the use and development of an area within a particular class of zone; and (ii) in relation to a subzone, set out additional policies or rules relating to the character of a particular part of a zone; and (iii) address specified or defined issues that may apply in any zone or subzone (or a part of any zone or subzone), or across zones or subzones, depending on the circumstances (overlays); and (iv) support the adaptive re-use of buildings and places in cases determined to be appropriate under the Planning and Design Code; and (c) include definitions of land use and establish land use classes; and (d) make provision for or with respect to any other matter contemplated by this Act as being included in the Planning and Design Code (to such extent, or in such manner, as the Commission thinks fit); and (e) include any other matter— (i) prescribed by the regulations; or (ii) considered appropriate by the Commission. (3) In connection with subsections (1) and (2)— (a) policies and rules for development in a zone, subzone or overlay should be clear and straightforward; and (b) if relevant, it should be clear which provisions in a zone are being modified by a subzone or overlay and how those provisions are being modified; and (c) the only spatial layers to be used are zones, subzones and overlays; and (d) the provisions of the Planning and Design Code may provide guidance for the development of the public realm; and (e) any policy or rule under the Planning and Design Code may apply in relation to development generally or any class of development; and (f) the Planning and Design Code must comply with any principle prescribed by the regulations or a state planning policy. (4) The Planning and Design Code may include provisions that provide for the adaptation of the rules that apply in relation to a specified zone or subzone or as an overlay to provide for necessary and appropriate local variations in specified circumstances, including by permitting in the Code— (a) the variation of a technical or numeric requirement within parameters specified in the Code; and (b) the variation of a requirement applying in a subzone, within parameters specified in the Code, in order to recognise unique character attributes; and (c) the adoption of options for development, specified in the Code, that are additional to those provided in a zone or subzone or as an overlay. (5) The Planning and Design Code may be accompanied by advisory material in the form of planning or design manuals or guidelines. 67—Local heritage (1) The Planning and Design Code may designate a place as a place of local heritage value if— (a) it displays historical, economic or social themes that are of importance to the local area; or (b) it represents customs or ways of life that are characteristic of the local area; or (c) it has played an important part in the lives of local residents; or (d) it displays aesthetic merit, design characteristics or construction techniques of significance to the local area; or (e) it is associated with a notable local personality or event; or (f) it is a notable landmark in the area; or (g) in the case of a tree (without limiting a preceding paragraph)—it is of special historical or social significance or importance within the local area. (2) For the purposes of subsection (1)— (a) a place will be taken to be any place within the meaning of the Heritage Places Act 1993; and (b) a designation of a place as a place of local heritage value must nominate or identify the component or other item, feature or attribute that is assessed as forming part of, or contributing to, the heritage significance of the place; and (c) the Commission may, after seeking the advice of the South Australian Heritage Council, develop or adopt guidelines that are to be used in the interpretation or application of the criteria set out in that subsection. (3) The Community Engagement Charter must include provisions that require consultation with the owner of any land constituting a place— (a) that is being proposed for inclusion in the Planning and Design Code as a place of local heritage value; or (b) that, under an amendment to the Planning and Design Code, is being proposed as being subject to any heritage character or preservation policy that is similar in intent or effect to a local heritage listing. (4) In addition, an area cannot be designated under an amendment to the Planning and Design Code as constituting a heritage character or preservation zone or subzone unless the amendment has been approved by persons who, at the time that consultation in relation to the proposed amendment is initiated under the Community Engagement Charter, constitute at least the prescribed percentage of owners of allotments within the relevant area (on the basis of 1 owner per allotment being counted under a scheme prescribed by the regulations). (5) In this section— prescribed percentage means 51% of relevant owners of allotments within a relevant area. 68—Significant trees (1) The Planning and Design Code may— (a) declare a tree to be a significant tree if— (i) it makes a significant contribution to the character or visual amenity of the local area; or (ii) it is indigenous to the local area, it is a rare or endangered species taking into account any criteria prescribed by the regulations, or it forms part of a remnant area of native vegetation; or (iii) it is an important habitat for native fauna taking into account any criteria prescribed by the regulations; or (iv) it satisfies any criteria prescribed by the regulations; or (b) declare a stand of trees to be significant trees if— (i) as a group they make a significant contribution to the character or visual amenity of the local area; or (ii) they are indigenous to the local area, they are members of a rare or endangered species taking into account any criteria prescribed by the regulations, or they form, or form part of, a remnant area of native vegetation; or (iii) as a group they form an important habitat for native fauna taking into account any criteria prescribed by the regulations; or (iv) as a group they satisfy any criteria prescribed by the regulations, (and the declaration may be made on the basis that certain trees located at the same place are excluded from the relevant stand). (2) However, a declaration under subsection (1) must not be inconsistent with any criteria prescribed by the regulations for the purposes of this subsection. (3) For the purposes of subsection (1), the Planning and Design Code must identify the location of a tree or stand of trees in accordance with any requirements imposed by the regulations.