Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017
In Force
SA
Jurisdiction
South Australia
Collection
regulation
Plain English Summary
7/10 complexity
These regulations set the transitional rules for moving planning processes from the repealed Development Act into the Planning, Development and Infrastructure Act 2016, converting existing development authorisations, Development Plan Amendments, local heritage listings and significant trees into the new Planning and Design Code. They give the Minister and the Commission powers to adopt or alter DPAs and to stage when the new rules apply (regs 8, 10–11), and impose deadlines, application-continuation rules and accreditation timings that affect councils, applicants and developers (regs 8(5), 11(2),(8)).
These regulations set out transitional operational mechanics for moving from the Development Act 1993 and its subsidiary instruments to the Planning, Development and Infrastructure Act 2016 (the PDI Act) and the new Planning and Design Code. They do not remap policy; they prescribe the procedural and statutory interactions, timing rules and conversion mechanisms that apply while the statutory transition is under way.
Mechanically, the regulations do at least the following (each item grounded in the text):
Define how references operate before certain proclamations (for example, a reference to Greater Adelaide in the Act is taken to mean the description in s 5(2) of the Act until a proclamation under s 5 is made; reg 4). This avoids a gap where the Act refers to Greater Adelaide before the Act’s proclamation has updated the map.
Make immediate transitional adjustments for section 7 of the PDI Act so that, from 1 April 2017, references in that section are read as references to relevant authorities and development authorisations under the repealed Act and treat the Commission as the Development Assessment Commission where appropriate (reg 5(1)-(3)). The regulations therefore treat certain PDI Act provisions as if they had operated under the Development Act prior to the full repeal.
Control the cessation or temporary continuation of development assessment panels constituted under the repealed Act. A council or regional panel in existence immediately before 1 October 2017 stops acting under the repealed Act on and after that date, subject to a saving where a council has not appointed the panel required by Schedule 8 of the PDI Act (reg 6(1)-(2)).
Provide a conversion route for Development Plan Amendments (DPAs) prepared under the repealed Act to be adopted or altered by the Minister and inserted into the Planning and Design Code, including the publication mechanics and limits on council applications (Part 3, reg 8(1)-(5)).
Lay out a staged commencement scheme for development assessment under Part 7 of the PDI Act so that assessment shifts from Development Plans to the Planning and Design Code only when the Minister revokes a particular Development Plan with effect from a relevant day (reg 10). The staged scheme includes detailed saving rules for applications made under the repealed Act but not finally determined before the relevant day (reg 11).
Provide special transitional treatment for "existing major development authorisations" granted under the repealed Act, expressly importing specified PDI Act provisions (including s 115 and s 108 equivalents) so authorisations can be varied, cancelled or otherwise treated under the PDI Act (reg 11A).
Ensure places of local heritage and significant trees designated under a revoked Development Plan are taken to be so designated in the Planning and Design Code as of the relevant day, and permit Gazette amendments to give effect (regs 12-13).
Preserve certain appeal rights under the repealed Act for applications not finally determined before the relevant day (reg 14).
Provide that references in other instruments to the Development Act, Planning Strategy or a Development Plan will be read as references to corresponding provisions in the PDI Act, state planning policies or the Planning and Design Code unless context requires otherwise (reg 15).
Operationally the regulations are primarily about attribution of authority, continuity of processes, who decides at what point, and conversion of existing planning instruments and determinations into the new statutory framework. They vest a number of discretions and procedural tasks in the Minister and the Commission (for example, the Minister may adopt or alter DPAs and amend the Planning and Design Code by Gazette to give effect to adopted DPAs (reg 8(1)-(3)); the Commission is consulted under those steps). The regulations also set temporal cut-offs for when legacy procedures can continue (for example, deadlines for council DPA applications under reg 8(5)).
The instrument therefore changes the legal mechanics of planning administration without itself creating new substantive development controls. It determines which instrument applies when, who is the relevant decision-maker in partly overlapping areas (reg 11(5)-(6)), and how documents and designations migrate from the repealed regime into the new regime, including preservation of EIS/PER/DR material for major developments (reg 11A(1)(c)-(d)).
Main concepts
The text uses a small set of recurring legal concepts to effect the transitions. Those concepts should be read narrowly as procedural devices in the regulations: "relevant day", "Development Plan", "Planning and Design Code", "Development Plan Amendment (DPA)", "existing major development authorisation", "repealed Act", and "relevant authority".
Relevant day: A flexible, area-specific date defined by the Minister’s revocation of a Development Plan. Regulation 10 sets up a scheme where the relevant day is the day on which revocation takes effect, and that day determines when development assessment in the area transfers from the Development Plan/repealed Act to the Planning and Design Code/PDI Act (reg 10(1)). The regulations repeatedly refer to "the relevant day" when setting when particular transitional rules apply (e.g., regs 11-14).
Development Plan Amendment (DPA): A DPA is a procedural object prepared under s 25 of the repealed Act. Part 3 (reg 8) governs how DPAs that have completed public consultation can be taken up or altered by the Minister and inserted into the Planning and Design Code. The regulations treat DPAs prepared by councils and those prepared by the Minister separately (reg 8(1) and (1a)).
Planning and Design Code: The new single Code under the PDI Act. The regulations treat the Code as the repository into which DPAs can be converted by Gazette notice once the Minister adopts or approves an amendment (reg 8(2)-(3)). The regulations also prescribe that, where a Development Plan is revoked, places of local heritage and significant trees designated in the revoked Development Plan will be taken to be designated in the Planning and Design Code (regs 12-13).
Repealed Act: The Development Act 1993 and its regulations. The transitional rules repeatedly preserve the operation of the repealed Act for matters that are in-flight until the relevant day, subject to specified exceptions and harmonising cross-references (reg 11(2)-(4), reg 15).
Existing major development authorisation: Defined in regulation 11A(2) and used to ensure continuity for projects granted under the repealed Act (reg 11A(1)). The regulations specify which PDI Act provisions will apply to those authorisations and how existing environmental statements and assessment reports will be treated (reg 11A(1)(a)-(d)).
Relevant authority: Who decides. The regulations allocate decision-making authority between Minister, Commission and other relevant authorities depending on the stage of transition and the type of application. For example, where a development straddles areas of differing transitional status, the Minister is the relevant authority for particular types of applications (reg 11(5)(b)) and, more generally, the Commission may be the relevant authority in other cases (reg 11(5)(b), reg 11(6)(d)).
Who it affects
The regulations affect a defined set of actors in the South Australian planning system by changing who does what during the transition:
The Minister: The Minister has a series of active powers under the regulations. The Minister may adopt, alter or decline DPAs prepared by councils (reg 8(1)); approve or alter DPAs prepared by the Minister (reg 8(1a)); amend the Planning and Design Code by Gazette to give effect to adopted or approved DPAs (reg 8(2),(2a)); specify commencement dates for Code amendments (reg 8(3)); and, by revoking Development Plans under Schedule 8 of the PDI Act, trigger the relevant day when assessment transfers to the PDI Act and Planning and Design Code (reg 10(1)(a)). The Minister also has an affirmative role in constituting local assessment panels (reg 6(2) cross-referenced to Schedule 8 of the Act).
The Commission: The Commission is a consultative or decision-making body in transition. It is to be consulted when the Minister deals with DPAs (reg 8(1)-(1a)), and the regulations treat certain references to the Minister under the repealed Act as references to the Commission for particular procedural provisions concerning declared projects (reg 11(3)(b)).
Councils: Councils that prepared DPAs under the repealed Act are affected because the Minister may adopt or alter those DPAs and convert them into Code amendments (reg 8(1)-(2)). Councils must complete public consultation under the repealed Act to be in the queue to have their DPA adopted (reg 8(1)(b)). Councils must also appoint assessment panels under Schedule 8 of the PDI Act to avoid the transitional continuation of their existing panels beyond 1 October 2017 (reg 6(1)-(2)). A council’s ability to apply under the regulation is time-limited in certain circumstances, for example, DPAs designating local heritage cannot be applied for by councils after 1 July 2021 (reg 8(5)(a)).
Existing assessment panels constituted under the repealed Act: Those panels that existed immediately before 1 October 2017 generally stop acting under the repealed Act from that date (reg 6(1)), unless a council has not appointed a new panel in which case the existing panel may continue until the Minister appoints the new panel (reg 6(2)).
Applicants and developers: Anyone with an application under the repealed Act that is not finally determined before the relevant day can, in many cases, have their application continued and completed under the repealed Act’s provisions (reg 11(2), (4)), subject to certain forms and appeal mechanisms being applied under the PDI Act (reg 11(2)(a)-(c)). For development that straddles areas with different transitional statuses, the application will be assessed as if regulation 10(1)(a) applied , that is, under the PDI Act and Code (reg 11(5)(a)-(b)). For projects declared under s 46 of the repealed Act, a number of subsections are re-mapped to the Minister or Commission (reg 11(3)-(3a)).
Key duties and rights
The regulations create duties for particular public actors and preserve rights for applicants and other stakeholders. Those duties and rights are procedural rather than substantive.
Duties (explicit in the text)
Minister’s duties and formal powers:
To consult the Commission when deciding to adopt, alter or decline DPAs prepared by councils (reg 8(1)); to consult the Commission when approving/altering DPAs prepared by the Minister (reg 8(1a)); and to effect Code amendments by Gazette and SA planning portal publication (reg 8(2), (2a), (3)).
To revoke Development Plans under clause 9(7) of Schedule 8 of the PDI Act in order to set the relevant day for an area, thereby triggering the transition (reg 10(1)(a)).
To constitute local assessment panels under clause 12(3) of Schedule 8 of the PDI Act, which can terminate the continuation privilege of old panels (reg 6(2)).
To amend the Planning and Design Code by Gazette to include heritage places and significant trees that migrate by operation of the regulations (regs 12(2)-(3), 13(2)-(3)).
Commission’s duties:
To be consulted where the Minister adopts or approves DPAs (reg 8(1), (1a)).
To act as the entity to which particular references to the Minister are mapped under the repealed Act for declared developments/projects after the relevant day (reg 11(3)(b)).
Councils:
To complete the public consultation requirements under the repealed Act s 25 or s 26 for DPAs if they want the Minister to adopt or approve an amendment and, if seeking Minister action, to apply in the form the Minister requires (reg 8(1)(b), (c), reg 8(1a)(b)).
To appoint assessment panels as required by Schedule 8 of the PDI Act to avoid the old panel continuing (reg 6(2)).
Assessment panels and managers:
Until the relevant day applies to an area, members and managers do not need to be accredited professionals under the PDI Act or the Accredited Professionals Regulations (reg 11(8)(a)-(b)). That is a duty exemption rather than a new duty.
Rights (explicitly preserved by the text)
Applicants whose applications under the repealed Act are not finally determined before the relevant day may, in many cases, have their applications continued and completed as if under the repealed Act, but with certain PDI Act procedural forms applied (reg 11(2), (4)). Specifically:
Penalties and enforcement
The regulations are transitional and procedural; they do not themselves create new criminal or civil penalties in the way a substantive planning control might. Instead, they allocate which existing enforcement and penalty mechanisms apply during and after transition by mapping ongoing matters to the operative provisions of the PDI Act or the repealed Act.
Key enforcement and penalty-relevant mechanics in the text:
Re-mapping to PDI Act enforcement: For applications continued under the repealed Act but completed after the relevant day, the regulations specify that notices and appeal pathways fall under the PDI Act (reg 11(2)(a)-(b), (4)). Because section 127 of the PDI Act applies in relation to those applications (reg 11(2)(b)), any enforcement, review or penalty consequences that flow from section 127 or other PDI Act enforcement provisions will apply once the decision is taken to be a PDI Act decision (reg 11(2)(c)). The regulations therefore shift the enforcement regime for continued applications to the PDI Act once a decision is given.
Major development authorisations: Regulation 11A(1)(a) expressly states that section 115 of the Act applies to existing major development authorisations and that such authorisations may be varied or cancelled under that section. Any enforcement, compliance measures or penalties that derive from section 115 therefore become applicable to those authorisations by virtue of the regulation. The regulation does not reproduce the content of s 115; it simply imports its operative application.
Ministerial decisions under replaced sections: For declared projects or developments assessed under the repealed Act before the relevant day, regulation 11(3)(a) provides that where section 48 of the repealed Act previously referred to the Governor, on or after the relevant day section 48 will apply as if the reference were to the Minister (a procedural substitution). Regulation 11(3)(b) maps certain other subsections of the repealed Act to the Commission for purposes of adopting findings or determinations. These mappings determine which executive actor has enforcement or decision power after transition, which in turn determines who can commence enforcement or vary authorisations.
Appeals preserved: Regulation 14 preserves rights of appeal under sections 38 and 86(1)(b) of the repealed Act for certain applications not finally determined before the relevant day, even if the internal process had not started. Those appeals are a primary vehicle for challenging enforcement decisions or consenting decisions made during the transition.
How it interacts with other laws
The regulations primarily operate as connectors between the repealed Development Act 1993 framework and the PDI Act architecture; they also provide interpretive bridges for other statutory instruments that reference the old regime. The instrument itself contains direct mapping rules to reduce the need for wholesale ancillary amendments in other instruments.
Key interactions (grounded in the text):
Direct textual substitution in other instruments: Regulation 15(1) provides that a reference in any Act, statutory instrument or other document to a provision of the Development Act 1993, or a regulation under it, will be taken to include a reference to a corresponding provision in the PDI Act before the Development Act 1993 is repealed, unless context requires otherwise. Regulation 15(2) contains an analogous rule for references to the Planning Strategy or a Development Plan, mapping them to a state planning policy or the Planning and Design Code. These are interpretive devices that operate across the statute book to smooth the legislative transition. They interact with all subordinate and enabling instruments that mention the Development Act or Development Plans, and are designed to prevent drafting gaps.
Relationship with Schedule 8 of the PDI Act and other PDI Act provisions: The staged commencement scheme (reg 10) explicitly references revocation under clause 9(7) of Schedule 8 of the PDI Act to set the relevant day, and then provides saving and mapping rules for ongoing applications and declared projects (reg 11). The regulations therefore interact closely with procedural sections of the PDI Act (for example, notices under s 126 and appeals under s 127 are imported for continued applications via reg 11(2)(a)-(b)). Where the repealed Act would have had the Governor act, the regulations map that role to the Minister for certain matters (reg 11(3)(a)), and map other functions to the Commission (reg 11(3)(b)). These mappings alter who exercises statutory functions previously exercised under the repealed Act.
Interaction with the Planning and Design Code and the SA planning portal: Regulation 8 allows the Minister to amend the Planning and Design Code by Gazette to give effect to adopted DPAs, but the amendment does not come into legal effect until it is published on the SA planning portal (reg 8(2)-(3)). This creates a cross-instrument dependency: the legislative effect of a Code amendment depends on administrative action (portal publication). Counsel and administrators must therefore coordinate Gazette notice, portal publication, and any specified later commencement date.
Amendment history
The regulations include their own amendment history in the legislative history section. That history records the principal instrument and subsequent variations, together with commencement dates. This part of the instrument is itself designed to be a clear legal record of how the transitional scheme evolved.
Concrete points from the legislative history (as listed):
Principal regulations were made in 2017 (No. 25, Gazette 28.3.2017 p979), with an initial commencement entry noted at 1.4.2017 for r 2 (the short title). An instrument later in 2017 (No. 210, Gazette 1.8.2017 p3058) commenced on 1.10.2017.
Later variations include 2019 instruments 17/2019 (Gazette 28.2.2019 p713, commenced 1.7.2019) and 174/2019 (Gazette 27.6.2019 p2550, also commenced 1.7.2019), a 2020 instrument 217/2020 (Gazette 18.6.2020 p3443, commenced 18.6.2020), and a 2021 instrument 191/2021 (Gazette 16.12.2021 p4431, commenced 16.12.2021). The legislative history summarises which parts were inserted or varied by each instrument.
Detailed variations are recorded in the "Provisions varied" table: for example, Part 3 and Part 4 were inserted by 17/2019; r 8(1a) and r 8(2a) were inserted by 174/2019; r 11 saw several variations and insertions across the 2019 and 2020 amendments; r 11A was inserted by 191/2021; and r 15 was inserted by 174/2019.
The historical versions listed indicate the key dates at which the regulations were re-compiled, notably 1.10.2017, 1.7.2019 and 18.6.2020.
What the amendment pattern signals (grounded in the text): The regulations have been subject to iterative refinement over several years following the PDI Act’s commencement. The additions of Part 3 and Part 4 in 2019 (via 17/2019) inserted substantive transitional provisions concerning DPAs and staged commencement, while later 2019 and 2020 instruments adjusted the mechanics (for example, r 8(1a), r 8(2a), and multiple modifications in r 11). The 2021 insertion of r 11A provided an explicit special provision relating to existing major development authorisations, acknowledging the need to ensure continuity for previously approved large-scale projects.
Practical implications of the amendment history:
The presence of multiple amendment instruments and temporal commencement points means the transitional rules changed as implementation proceeded. Users of the regulations must therefore check the version history and the commencement dates relevant to their matter , an action facilitated by the legislative history but not replaced by it.
Litigation history
The regulations themselves do not list any cases; no judicial decisions are named in the instrument. The legislative text contains no references to court decisions or litigation outcomes. Therefore any litigation history must be inferred from the kinds of disputes the regulations are likely to generate, but such inference should remain grounded in the text.
Potential litigation flashpoints based on the provisions:
Authority allocation disputes: The staged commencement rules (reg 10) and overlap rules (reg 11(5)-(6)) assign authority in certain cross‑boundary scenarios to the Minister or the Commission. Disputes may arise about whether the correct relevant day was declared, or whether the Minister validly revoked a Development Plan for a particular area. Litigation could focus on whether the revocation instrument complied with Schedule 8 of the PDI Act and whether the transitional mapping to the PDI Act’s procedural rules was correctly implemented in an individual case.
Procedural conversions and rights of appeal: Regulation 11(2) provides that applications continued and completed under the repealed Act will use PDI Act notice and appeal procedures once determined. Parties may litigate over time limits, the form of notice, or whether an appeal should lie under the repealed Act or the PDI Act in a specific case, particularly where multiple timelines or forms overlap.
Ministerial discretion in adopting/altering DPAs: Regulation 8 gives the Minister power to adopt, alter or decline DPAs prepared by councils (reg 8(1)) and to amend the Planning and Design Code accordingly (reg 8(2)-(3)). Litigation could challenge whether the Minister acted within the bounds of that discretion, whether adequate consultation with the Commission took place, or whether a converted Code amendment conforms with the statutory requirements and procedural fairness obligations.
Heritage and tree designation migration: Regulations 12 and 13 move local heritage and significant tree designations into the Code on the relevant day. Disputes may arise about the effect of the non-application of s 202(1)(a) to designations made by operation of reg 12(1) or reg 12(2) (reg 12(4)), or about whether particular places or trees were properly captured by the migration. Challenges could centre on whether the ministerial Gazette notice and Code amendment are valid, or whether rectification is required.
Treatment of existing major development authorisations: Regulation 11A maps existing major development authorisations to PDI Act mechanisms and imports s 115 and s 108 equivalents. Litigation could occur over the correctness of a variation, cancellation or revocation executed under s 115 as applied, or over whether an Environmental Impact Statement, PER or DR was properly carried over and given effect as an EIS under the Act (reg 11A(1)(c)-(d)).
Gotchas
This transitional statute contains several practical traps for inattention. The following are issues that routinely arise in practice and are directly grounded in the regulation text.
Multiple "relevant days" across the State:
The regulations use an area-specific "relevant day" tied to ministerial revocation of Development Plans (reg 10(1)(a)). That means neighbouring properties can be subject to different regimes on different dates. Developers and counsel must not assume a single statewide cut-over date applies. Confirm the relevant day for the specific area.
Overlap and single-authority rule:
Where the Planning and Design Code overlaps with an area where a Development Plan still applies, the regulations prescribe that the development will be assessed as if the Planning and Design Code applied (reg 11(6)(c)). That centralises assessment under the Code and designates the Minister or Commission as the relevant authority depending on application type (reg 11(6)(d)). Practitioners used to local plan-based assessment may be surprised to find the Code and state-level decision-maker displace local plan processes in overlapped areas.
Hybrid procedural steps for continued applications:
Applications made under the repealed Act but not finally determined before the relevant day may be continued under the repealed Act, but notices and appeals must conform to PDI Act forms and sections (reg 11(2)(a)-(b)). This hybrid can cause confusion about which time limits, appeal periods and notice requirements apply; it requires practitioners to cross-reference the PDI Act’s s 126 and s 127 when finalising continued applications.
Ministerial power to alter DPAs when converting to the Code:
When the Minister adopts or approves a DPA, the Minister may modify it to give effect as a Planning and Design Code amendment because the amendment is being made to a different instrument (reg 8(2), (2a)). That creates a risk that the final Code provision differs materially from the DPA consulted on under the repealed Act. Councils and proponents should not assume the DPA will be imported verbatim.
Publication mechanics for Code amendments:
A Code amendment does not take effect until it is published on the SA planning portal (reg 8(3)(a)). Gazette notification alone is not sufficient. Parties should monitor portal publication and any later commencement date the Minister specifies (reg 8(3)(b)). Failure to await portal publication before acting on a supposed amendment can create legal vulnerability.
How to comply
The regulations create specific administrative steps and behavioural adjustments for councils, the Minister, the Commission, assessment panels, developers and their advisers. Compliance is largely procedural: ensure the correct instrument applies at the right time, follow the publication and application deadlines, preserve and produce the right documents, and use the PDI Act forms and appeal routes where required.
Actionable compliance steps, grounded in the regulations:
Determine the relevant day for the area:
Check whether the Minister has revoked the local Development Plan under clause 9(7) of Schedule 8 of the PDI Act such that the revocation takes effect on a specific date. The relevant day triggers whether development is assessed under the PDI Act and Planning and Design Code (reg 10(1)(a)). Do not assume statewide uniformity.
For councils preparing DPAs under the repealed Act:
Complete the public consultation steps required under s 25 of the repealed Act for council-prepared DPAs (reg 8(1)(b)).
If a council wants the Minister to adopt (or alter) the DPA and convert it into the Planning and Design Code, make an application to the Minister in the form and with any requirements the Minister determines (reg 8(1)(c)). Note the time limits: for DPAs dealing solely with local heritage, the cut-off is 1 July 2021; otherwise, the council cannot apply later than three months after the Development Plan is revoked (reg 8(5)(a)-(b)).
For DPAs prepared by the Minister:
Ensure public consultation requirements under s 26(5)(d)(ii), (5a)(b) or (5b)(b) of the repealed Act have been completed before the Minister proceeds to approve or alter the DPA (reg 8(1a)(b)-(d)). After approval, effect the amendment by Gazette and portal publication (reg 8(2a)-(3)).
For Minister and Commission when converting DPAs to the Planning and Design Code:
Consult the Commission before adopting or approving amendments (reg 8(1), (1a)).
If adopting or approving, issue Gazette notice to amend the Planning and Design Code and ensure the amendment is published on the SA planning portal before it has legal effect (reg 8(2), (2a), (3)(a)).
Consider whether modifications are necessary because the amendment is being inserted into the Code rather than a Development Plan, and record the reasons for any such modifications (reg 8(2), (2a)).
Current sections
Direct links to the current provisions in Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017.
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Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017
South Australia
Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017
under the Planning, Development and Infrastructure Act 2016
Contents
Part 1—Preliminary
1 Short title
3 Interpretation
Part 2—Initial provisions
4 Greater Adelaide
5 Transitional provisions relating to extension of operation of section 7 under repealed Act
6 Transitional provisions relating to development assessment panels under repealed Act
Part 3—Development plan amendments
7 Interpretation
8 Adoption of DPAs
Part 4—Staged commencement of development assessment under Act
9 Interpretation
10 General scheme for staged commencement
11 Related provisions
11A Special provision relating to existing authorisations of major developments
12 Local heritage
13 Significant trees
14 Appeals
15 References to provisions and instruments
Legislative history
Part 1—Preliminary
1—Short title
These regulations may be cited as the Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017.
3—Interpretation
In these regulations, unless the contrary intention appears—
Act means the Planning, Development and Infrastructure Act 2016.
Part 2—Initial provisions
4—Greater Adelaide
Until the first proclamation is made under section 5 of the Act, a reference to Greater Adelaide in the Act will be taken to be a reference to Greater Adelaide as described in section 5(2) of the Act.
5—Transitional provisions relating to extension of operation of section 7 under repealed Act
(1) For the purposes of clause 5(4)(d) of Schedule 8 of the Act, the following transitional provisions will apply on account of the commencement of section 7 of the Act on 1 April 2017 and in relation to the application of section 7 as if it formed part of the repealed Act:
(a) a reference in section 7 to a relevant authority will be taken to be a reference to a relevant authority under the repealed Act;
(b) a reference in section 7 to a development authorisation will be taken to be a reference to a development authorisation under the repealed Act;
(c) a reference to the Commission being a relevant authority will be taken to be a reference to the Development Assessment Commission, subject to the operation of clause 6 of Schedule 8 of the Act.
(2) Schedule 7 of the Act will apply in relation to the operation of section 7 of the Act as it applies under the repealed Act on account of the commencement of that section and the operation of clause 5(4)(c) of Schedule 8 of the Act.
(3) In connection with the operation of subregulation (2), a reference in Schedule 7 of the Act to a development authorisation will be taken to include a reference to a development authorisation under the repealed Act.
6—Transitional provisions relating to development assessment panels under repealed Act
(1) Subject to subregulation (2), on and after 1 October 2017 (being the designated day for the purposes of clauses 12 and 13 of Schedule 8 of the Act), a council development assessment panel or a regional development assessment panel constituted under the repealed Act (and in existence immediately before 1 October 2017) will no longer act under the repealed Act.
(2) If a council has not, immediately before 1 October 2017, appointed an assessment panel envisaged by clause 12(1) of Schedule 8 of the Act, the council's development assessment panel constituted under the repealed Act may continue to act until the Minister constitutes a local assessment panel under clause 12(3) of Schedule 8 of the Act.
Part 3—Development plan amendments
7—Interpretation
In this Part—
DPA means a Development Plan Amendment under section 25 of the repealed Act;
PDI Act means the Planning, Development and Infrastructure Act 2016.
8—Adoption of DPAs
(1) In addition to clause 9 of Schedule 8 of the PDI Act, if—
(a) a DPA has been prepared by a council under section 25 of the repealed Act; and
(b) the requirements of section 25 of the repealed Act relating to public consultation have been completed and a report prepared under section 25(13) of that Act (whether before or after the commencement of this regulation); and
(c) the council applies to the Minister under this subregulation in accordance with any requirements determined by the Minister,
the Minister may, after consultation with the Commission—
(d) adopt an amendment proposed in the report; or
(e) alter an amendment proposed in the report and then proceed to adopt the amendment as altered; or
(f) decline to adopt an amendment proposed in the report.
(1a) In addition to clause 9 of Schedule 8 of the PDI Act, if—
(a) a DPA has been prepared by the Minister under section 26 of the repealed Act; and
(b) the requirements of section 26(5)(d)(ii), (5a)(b) or (5b)(b) of the repealed Act relating to public consultation have been completed (whether before or after the commencement of this subregulation),
the Minister may, after consultation with the Commission—
(c) approve the relevant amendment; or
(d) alter the relevant amendment and approve the amendment as altered.
(2) If the Minister adopts an amendment (or an amendment as altered) under subregulation (1), the Minister may, by notice in the Gazette, amend the Planning and Design Code to give effect to the amendment, subject to such modifications as may, in the opinion of the Minister, be necessary on account of the amendment being adopted as an amendment to the Planning and Design Code rather than as an amendment to a Development Plan.
(2a) If the Minister approves an amendment (or an amendment as altered) under subregulation (1a), the Minister may, by notice in the Gazette, amend the Planning and Design Code to give effect to the amendment, subject to such modifications as may, in the opinion of the Minister, be necessary on account of the amendment being approved as an amendment to the Planning and Design Code rather than as an amendment to a Development Plan.
(3) An amendment made to the Planning and Design Code under subregulation (2) or subregulation (2a)—
(a) does not have effect until it is published on the SA planning portal; and
(b) may take effect from the date of publication under paragraph (a), or from a later date specified by the Minister.
(4) Subject to subregulation (5), the Minister may act under this regulation even if the relevant Development Plan has been revoked by the Minister under clause 9 of Schedule 8 of the PDI Act.
(5) A council may not make an application under this regulation—
(a) in the case of an application that relates to an amendment designating 1 or more places as places of local heritage value under section 23(4) of the repealed Act (and not relating to any other matter)—after 1 July 2021; and
(b) in any other case—3 months after the date on which the Development Plan to which the DPA relates has been revoked by the Minister.
Part 4—Staged commencement of development assessment under Act
9—Interpretation
In this Part—
PDI Act means the Planning, Development and Infrastructure Act 2016;
relevant day means the relevant day, as applying under regulation 10(1)(a) in relation to a particular area of the State.
10—General scheme for staged commencement
(1) On and after the commencement of Part 7 of the PDI Act the following provisions will apply:
(a) if or when the Minister, acting under clause 9(7) of Schedule 8 of the PDI Act, has revoked or revokes a Development Plan (with the revocation to take effect on or after the commencement of Part 7 of the PDI Act), development within the area of the State to which the Development Plan related will be assessed in all respects under the PDI Act, on and from the day on which the revocation takes effect (the relevant day);
(b) until the Minister revokes a particular Development Plan acting under clause 9(7) of Schedule 8 of the PDI Act—
(i) development within the area of the State in relation to which the Development Plan relates will continue to be assessed against the provisions of the Development Plan rather than the provisions of the Planning and Design Code; and
(ii) the repealed Act (and the regulations under that Act) will continue to apply in relation to development within the area of the State in relation to which the Development Plan relates.
(2) Subregulation (1) applies subject to regulation 11.
11—Related provisions
(1) The following provisions apply in conjunction with regulation 10.
(2) An application made to a relevant authority under section 39 of the repealed Act with respect to a proposed development within an area of the State that is subject to the revocation of the relevant Development Plan that has not been finally determined before the relevant day in relation to that area may be continued and completed under the provisions of the repealed Act, except that—
(a) notice of a decision on the application will be in the form that applies under section 126 of the PDI Act rather than the form that applies under section 40 of the repealed Act; and
(b) section 127 of the PDI Act will apply in relation to the application rather than section 42 of the repealed Act; and
(c) a decision on the application will, once given, be taken to be a decision given under the PDI Act (and the PDI Act will apply in relation to the relevant development authorisation).
(3) The repealed Act will continue to apply to and in relation to a proposed development or project that is the subject of a declaration made under section 46 of the repealed Act before the relevant day in relation to the area within which the development or project would be undertaken (and that has not been the subject of a decision of the Governor under section 48 of the repealed Act before the relevant day), except that—
(a) section 48 of the repealed Act will, on or after the relevant day, apply in relation to the development or project as if a reference to the Governor were a reference to the Minister (and a decision of the Minister in relation to the development or project will have effect as if it were a decision of the Minister under section 115 of the PDI Act); and
(b) sections 46B(9) to (12), 46C(9) to (12), 46D(8) to (10) and 47(3) of the repealed Act will, on or after the relevant day, apply in relation to the development or project as if a reference to the Minister were a reference to the Commission (and the Commission may adopt any findings or determinations of the Minister under those subsections made before the relevant day to give effect to this subregulation).
(3a) To avoid doubt, if a development or project of a kind referred to in subregulation (3) is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(a) applies and partly within an area of the State in relation to which regulation 10(1)(b) applies, subregulation (3) applies in respect of the assessment of the development or project (even though it is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(b) applies).
(4) An application—
(a) lodged under section 49 or 49A of the repealed Act with respect to a proposed development within an area of the State that is subject to the revocation of the relevant Development Plan; and
(b) that has not been finally determined before the relevant day in relation to that area,
may be continued and completed under the provisions of the repealed Act, except that a decision on the application will, once given, be taken to be a decision given under the PDI Act (and the PDI Act will apply in relation to the relevant development authorisation).
(4a) To avoid doubt, if development of a kind referred to in subregulation (4) is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(a) applies and partly within an area of the State in relation to which regulation 10(1)(b) applies, subregulation (4) applies to the assessment of the development (even though it is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(b) applies).
(5) If development is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(a) applies and partly within an area of the State in relation to which regulation 10(1)(b) applies, then—
(a) an application for a development authorisation in relation to the development made after the relevant day will be assessed in all respects as if regulation 10(1)(a) applied in relation to the development; and
(b) —
(i) in the case of an application to which section 111 of the PDI Act applies or an application lodged under section 131 of the PDI Act—the Minister will be the relevant authority; or
(ii) in any other case—the Commission will be the relevant authority.
(6) If—
(a) regulation 10(1)(a) applies in relation to an area of the State; and
(b) the Planning and Design Code, in applying under that regulation, overlaps with the area to which a Development Plan continues to apply by virtue of the operation of regulation 10(1)(b),
then—
(c) any development that would, but for this subregulation, be subject to the Planning and Design Code and to a Development Plan by virtue of the overlap will be assessed in all respects as if regulation 10(1)(a) applied in relation to the development; and
(d) —
(i) in the case of an application to which section 111 of the PDI Act applies or an application lodged under section 131 of the PDI Act—the Minister will be the relevant authority; or
(ii) in any other case—the Commission will be the relevant authority.
(7) In relation to the operation of Schedule 8 clause 4 of the PDI Act—
(a) the clause will not apply in relation to development within an area of the State to which a Development Plan relates until development in that area is to be assessed under the PDI Act; and
(b) the designated day under that clause in relation to development within that area will be taken to be the relevant day applying under regulation 10(1)(a) in relation to that area.
(8) In addition to Schedule 8 clause 16 of the PDI Act:
(a) a member of an assessment panel does not need to be an accredited professional under the PDI Act (or under the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019) until the relevant day under regulation 10(1)(a) applies in relation to the area of the State in relation to which the assessment panel is constituted; and
(b) an assessment manager for an assessment panel does not need to be an accredited professional under the PDI Act (or under the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019) until the relevant day under regulation 10(1)(a) applies in relation to the area of the State in relation to which the assessment panel is constituted.
11A—Special provision relating to existing authorisations of major developments
(1) For the avoidance of doubt, the following provisions apply in relation to an existing major development authorisation:
(a) section 115 of the Act applies to the existing major development authorisation (and the authorisation may be varied or cancelled in accordance with that section);
(b) a declaration under section 46 of the repealed Act (or, in the case of a declaration made before 2 January 1997, section 48 of the repealed Act) on the basis of which the decision to grant the existing major development authorisation was made will be taken to be a declaration made by the Minister under section 108(1)(c) of the Act (and may be varied or revoked in accordance with section 108(6));
(c) the EIS, PER or DR prepared under the repealed Act in connection with the development approved by the existing major development authorisation will be taken to be an EIS for the purposes of the Act (and may be amended in accordance with section 114);
(d) the Assessment Report prepared under the repealed Act in connection with the development approved by the existing major development authorisation will be taken to be an Assessment Report for the purposes of the Act (and may be amended in accordance with section 114).
(2) In this regulation—
existing major development authorisation means—
(a) a development authorisation granted under section 48 of the repealed Act that is taken to be a development authorisation under the Act pursuant to Schedule 8 clause 3 of the Act; or
(b) a development authorisation granted under section 48 of the repealed Act in accordance with regulation 11(3).
12—Local heritage
(1) On the relevant day in relation to an area of the State, a place designated as a place of local heritage value by a Development Plan that has been revoked by the Minister will be taken to be designated as a place of local heritage value by the Planning and Design Code.
(2) The Minister may, by notice in the Gazette, amend the Planning and Design Code in order to include a place of local heritage value in the Planning and Design Code by virtue of the operation of subregulation (1).
(3) Subregulations (1) and (2) do not limit the ability to make a later amendment to the Planning and Design Code in relation to a place to which subregulation (1) applies.
(4) Section 202(1)(a) of the PDI Act does not apply to or in relation to the designation of a place of local heritage value under the PDI Act by operation of subregulation (1) or on account of the inclusion of a place of local heritage value in the Planning and Design Code under subregulation (2).
13—Significant trees
(1) On the relevant day in relation to an area of the State, a significant tree by virtue of the operation of a Development Plan that has been revoked by the Minister will be taken to be a significant tree under the Planning and Design Code.
(2) The Minister may, by notice in the Gazette, amend the Planning and Design Code in order to include a significant tree in the Planning and Design Code by virtue of the operation of subregulation (1).
(3) Subregulations (1) and (2) do not limit the ability to make a later amendment to the Planning and Design Code in relation to a tree to which subregulation (1) applies.
14—Appeals
A right of appeal under sections 38 and 86(1)(b) of the repealed Act may be exercised in relation to an application made to a relevant authority under section 39 of the repealed Act that has not been finally determined before the relevant day in relation to the area within which the development would be undertaken even if the process under section 38 of the repealed Act had not been commenced (or completed) before the relevant day.
15—References to provisions and instruments
(1) A reference in any Act, statutory instrument or other document or instrument to a provision of the Development Act 1993, or a regulation made under the Development Act 1993, will, before the Development Act 1993 is repealed, unless the context otherwise requires, be taken to include a reference to a corresponding provision in the PDI Act, or a corresponding regulation made under the PDI Act (as the case may be).
(2) A reference in any Act, statutory instrument or other document or instrument to the Planning Strategy or a Development Plan will, unless the context otherwise requires, be taken to include a reference to a state planning policy or the Planning and Design Code (as the case may be).
Legislative history
Notes
• Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
• Earlier versions of these regulations (historical versions) are listed at the end of the legislative history.
• For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au.
Principal regulations and variations
New entries appear in bold.
Year
No
Reference
Commencement
2017
25
Gazette 28.3.2017 p979
1.4.2017: r 2
2017
210
Gazette 1.8.2017 p3058
1.10.2017: r 2
2019
17
Gazette 28.2.2019 p713
1.7.2019: r 2
2019
174
Gazette 27.6.2019 p2550
1.7.2019 immediately after 17/2019: r 2
2020
217
Gazette 18.6.2020 p3443
18.6.2020: r 2
2021
191
Gazette 16.12.2021 p4431
16.12.2021: r 2
Provisions varied
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision
How varied
Commencement
Pt 1
heading
inserted by 17/2019 r 4
1.7.2019
r 2
omitted under Legislation Revision and Publication Act 2002
1.10.2017
Pt 2
heading
inserted by 17/2019 r 5
1.7.2019
r 6
inserted by 210/2017 r 4
1.10.2017
Pt 3
inserted by 17/2019 r 6
1.7.2019
r 8
r 8(1a)
inserted by 174/2019 r 4(1)
1.7.2019
r 8(2a)
inserted by 174/2019 r 4(2)
1.7.2019
r 8(3)
varied by 174/2019 r 4(3)
1.7.2019
r 8(5)
substituted by 174/2019 r 4(4)
1.7.2019
varied by 217/2020 r 4
18.6.2020
Pt 4
inserted by 17/2019 r 6
1.7.2019
r 11
r 11(3)
varied by 217/2020 r 5(1)
18.6.2020
r 11(3a)
inserted by 217/2020 r 5(2)
18.6.2020
r 11(4)
substituted by 217/2020 r 5(3)
18.6.2020
r 11(4a)
inserted by 217/2020 r 5(4)
18.6.2020
r 11(5)
varied by 217/2020 r 5(5)
18.6.2020
r 11(6)
varied by 217/2020 r 5(6)
18.6.2020
r 11(7) and (8)
inserted by 174/2019 r 5
1.7.2019
r 11A
inserted by 191/2021 r 4
16.12.2021
r 15
inserted by 174/2019 r 6
1.7.2019
Historical versions
1.10.2017
1.7.2019
18.6.2020
Source text: opening excerpt
Sourced from South Australian Legislation (legislation.sa.gov.au), CC BY 4.0.
1 Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017
South Australia
Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017
under the Planning, Development and Infrastructure Act 2016
Contents
Part 1—Preliminary
1 Short title
3 Interpretation
Part 2—Initial provisions
4 Greater Adelaide
5 Transitional provisions relating to extension of operation of section 7 under repealed Act
6 Transitional provisions relating to development assessment panels under repealed Act
Part 3—Development plan amendments
7 Interpretation
8 Adoption of DPAs
Part 4—Staged commencement of development assessment under Act
9 Interpretation
10 General scheme for staged commencement
11 Related provisions
11A Special provision relating to existing authorisations of major developments
12 Local heritage
13 Significant trees
14 Appeals
15 References to provisions and instruments
Legislative history
Part 1—Preliminary
1—Short title
These regulations may be cited as the Planning, Development and Infrastructure (Transitional Provisions) Regulations 2017.
3—Interpretation
In these regulations, unless the contrary intention appears—
Act means the Planning, Development and Infrastructure Act 2016.
Part 2—Initial provisions
4—Greater Adelaide
Until the first proclamation is made under section 5 of the Act, a reference to Greater Adelaide in the Act will be taken to be a reference to Greater Adelaide as described in section 5(2) of the Act.
5—Transitional provisions relating to extension of operation of section 7 under repealed Act
(1) For the purposes of clause 5(4)(d) of Schedule 8 of the Act, the following transitional provisions will apply on account of the commencement of section 7 of the Act on 1 April 2017 and in relation to the application of section 7 as if it formed part of the repealed Act:
(a) a reference in section 7 to a relevant authority will be taken to be a reference to a relevant authority under the repealed Act;
(b) a reference in section 7 to a development authorisation will be taken to be a reference to a development authorisation under the repealed Act;
(c) a reference to the Commission being a relevant authority will be taken to be a reference to the Development Assessment Commission, subject to the operation of clause 6 of Schedule 8 of the Act.
(2) Schedule 7 of the Act will apply in relation to the operation of section 7 of the Act as it applies under the repealed Act on account of the commencement of that section and the operation of clause 5(4)(c) of Schedule 8 of the Act.
(3) In connection with the operation of subregulation (2), a reference in Schedule 7 of the Act to a development authorisation will be taken to include a reference to a development authorisation under the repealed Act.
6—Transitional provisions relating to development assessment panels under repealed Act
(1) Subject to subregulation (2), on and after 1 October 2017 (being the designated day for the purposes of clauses 12 and 13 of Schedule 8 of the Act), a council development assessment panel or a regional development assessment panel constituted under the repealed Act (and in existence immediately before 1 October 2017) will no longer act under the repealed Act.
(2) If a council has not, immediately before 1 October 2017, appointed an assessment panel envisaged by clause 12(1) of Schedule 8 of the Act, the council's development assessment panel constituted under the repealed Act may continue to act until the Minister constitutes a local assessment panel under clause 12(3) of Schedule 8 of the Act.
Part 3—Development plan amendments
7—Interpretation
In this Part—
DPA means a Development Plan Amendment under section 25 of the repealed Act;
PDI Act means the Planning, Development and Infrastructure Act 2016.
8—Adoption of DPAs
(1) In addition to clause 9 of Schedule 8 of the PDI Act, if—
(a) a DPA has been prepared by a council under section 25 of the repealed Act; and
(b) the requirements of section 25 of the repealed Act relating to public consultation have been completed and a report prepared under section 25(13) of that Act (whether before or after the commencement of this regulation); and
(c) the council applies to the Minister under this subregulation in accordance with any requirements determined by the Minister,
the Minister may, after consultation with the Commission—
(d) adopt an amendment proposed in the report; or
(e) alter an amendment proposed in the report and then proceed to adopt the amendment as altered; or
(f) decline to adopt an amendment proposed in the report.
(1a) In addition to clause 9 of Schedule 8 of the PDI Act, if—
(a) a DPA has been prepared by the Minister under section 26 of the repealed Act; and
(b) the requirements of section 26(5)(d)(ii), (5a)(b) or (5b)(b) of the repealed Act relating to public consultation have been completed (whether before or after the commencement of this subregulation),
the Minister may, after consultation with the Commission—
(c) approve the relevant amendment; or
(d) alter the relevant amendment and approve the amendment as altered.
(2) If the Minister adopts an amendment (or an amendment as altered) under subregulation (1), the Minister may, by notice in the Gazette, amend the Planning and Design Code to give effect to the amendment, subject to such modifications as may, in the opinion of the Minister, be necessary on account of the amendment being adopted as an amendment to the Planning and Design Code rather than as an amendment to a Development Plan.
(2a) If the Minister approves an amendment (or an amendment as altered) under subregulation (1a), the Minister may, by notice in the Gazette, amend the Planning and Design Code to give effect to the amendment, subject to such modifications as may, in the opinion of the Minister, be necessary on account of the amendment being approved as an amendment to the Planning and Design Code rather than as an amendment to a Development Plan.
(3) An amendment made to the Planning and Design Code under subregulation (2) or subregulation (2a)—
(a) does not have effect until it is published on the SA planning portal; and
(b) may take effect from the date of publication under paragraph (a), or from a later date specified by the Minister.
(4) Subject to subregulation (5), the Minister may act under this regulation even if the relevant Development Plan has been revoked by the Minister under clause 9 of Schedule 8 of the PDI Act.
(5) A council may not make an application under this regulation—
(a) in the case of an application that relates to an amendment designating 1 or more places as places of local heritage value under section 23(4) of the repealed Act (and not relating to any other matter)—after 1 July 2021; and
(b) in any other case—3 months after the date on which the Development Plan to which the DPA relates has been revoked by the Minister.
Part 4—Staged commencement of development assessment under Act
9—Interpretation
In this Part—
PDI Act means the Planning, Development and Infrastructure Act 2016;
relevant day means the relevant day, as applying under regulation 10(1)(a) in relation to a particular area of the State.
10—General scheme for staged commencement
(1) On and after the commencement of Part 7 of the PDI Act the following provisions will apply:
(a) if or when the Minister, acting under clause 9(7) of Schedule 8 of the PDI Act, has revoked or revokes a Development Plan (with the revocation to take effect on or after the commencement of Part 7 of the PDI Act), development within the area of the State to which the Development Plan related will be assessed in all respects under the PDI Act, on and from the day on which the revocation takes effect (the relevant day);
(b) until the Minister revokes a particular Development Plan acting under clause 9(7) of Schedule 8 of the PDI Act—
(i) development within the area of the State in relation to which the Development Plan relates will continue to be assessed against the provisions of the Development Plan rather than the provisions of the Planning and Design Code; and
(ii) the repealed Act (and the regulations under that Act) will continue to apply in relation to development within the area of the State in relation to which the Development Plan relates.
(2) Subregulation (1) applies subject to regulation 11.
11—Related provisions
(1) The following provisions apply in conjunction with regulation 10.
(2) An application made to a relevant authority under section 39 of the repealed Act with respect to a proposed development within an area of the State that is subject to the revocation of the relevant Development Plan that has not been finally determined before the relevant day in relation to that area may be continued and completed under the provisions of the repealed Act, except that—
(a) notice of a decision on the application will be in the form that applies under section 126 of the PDI Act rather than the form that applies under section 40 of the repealed Act; and
(b) section 127 of the PDI Act will apply in relation to the application rather than section 42 of the repealed Act; and
(c) a decision on the application will, once given, be taken to be a decision given under the PDI Act (and the PDI Act will apply in relation to the relevant development authorisation).
(3) The repealed Act will continue to apply to and in relation to a proposed development or project that is the subject of a declaration made under section 46 of the repealed Act before the relevant day in relation to the area within which the development or project would be undertaken (and that has not been the subject of a decision of the Governor under section 48 of the repealed Act before the relevant day), except that—
(a) section 48 of the repealed Act will, on or after the relevant day, apply in relation to the development or project as if a reference to the Governor were a reference to the Minister (and a decision of the Minister in relation to the development or project will have effect as if it were a decision of the Minister under section 115 of the PDI Act); and
(b) sections 46B(9) to (12), 46C(9) to (12), 46D(8) to (10) and 47(3) of the repealed Act will, on or after the relevant day, apply in relation to the development or project as if a reference to the Minister were a reference to the Commission (and the Commission may adopt any findings or determinations of the Minister under those subsections made before the relevant day to give effect to this subregulation).
(3a) To avoid doubt, if a development or project of a kind referred to in subregulation (3) is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(a) applies and partly within an area of the State in relation to which regulation 10(1)(b) applies, subregulation (3) applies in respect of the assessment of the development or project (even though it is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(b) applies).
(4) An application—
(a) lodged under section 49 or 49A of the repealed Act with respect to a proposed development within an area of the State that is subject to the revocation of the relevant Development Plan; and
(b) that has not been finally determined before the relevant day in relation to that area,
may be continued and completed under the provisions of the repealed Act, except that a decision on the application will, once given, be taken to be a decision given under the PDI Act (and the PDI Act will apply in relation to the relevant development authorisation).
(4a) To avoid doubt, if development of a kind referred to in subregulation (4) is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(a) applies and partly within an area of the State in relation to which regulation 10(1)(b) applies, subregulation (4) applies to the assessment of the development (even though it is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(b) applies).
(5) If development is proposed to be undertaken partly within an area of the State in relation to which regulation 10(1)(a) applies and partly within an area of the State in relation to which regulation 10(1)(b) applies, then—
(a) an application for a development authorisation in relation to the development made after the relevant day will be assessed in all respects as if regulation 10(1)(a) applied in relation to the development; and
(b) —
(i) in the case of an application to which section 111 of the PDI Act applies or an application lodged under section 131 of the PDI Act—the Minister will be the relevant authority; or
(ii) in any other case—the Commission will be the relevant authority.
(6) If—
(a) regulation 10(1)(a) applies in relation to an area of the State; and
(b) the Planning and Design Code, in applying under that regulation, overlaps with the area to which a Development Plan continues to apply by virtue of the operation of regulation 10(1)(b),
then—
(c) any development that would, but for this subregulation, be subject to the Planning and Design Code and to a Development Plan by virtue of the overlap will be assessed in all respects as if regulation 10(1)(a) applied in relation to the development; and
(d) —
(i) in the case of an application to which section 111 of the PDI Act applies or an application lodged under section 131 of the PDI Act—the Minister will be the relevant authority; or
(ii) in any other case—the Commission will be the relevant authority.
(7) In relation to the operation of Schedule 8 clause 4 of the PDI Act—
(a) the clause will not apply in relation to development within an area of the State to which a Development Plan relates until development in that area is to be assessed under the PDI Act; and
(b) the designated day under that clause in relation to development within that area will be taken to be the relevant day applying under regulation 10(1)(a) in relation to that area.
(8) In addition to Schedule 8 clause 16 of the PDI Act:
(a) a member of an assessment panel does not need to be an accredited professional under the PDI Act (or under the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019) until the relevant day under regulation 10(1)(a) applies in relation to the area of the State in relation to which the assessment panel is constituted; and
(b) an assessment manager for an assessment panel does not need to be an accredited professional under the PDI Act (or under the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019) until the relevant day under regulation 10(1)(a) applies in relation to the area of the State in relation to which the assessment panel is constituted.
11A—Special provision relating to existing authorisations of major developments
(1) For the avoidance of doubt, the following provisions apply in relation to an existing major development authorisation:
(a) section 115 of the Act applies to the existing major development authorisation (and the authorisation may be varied or cancelled in accordance with that section);
(b) a declaration under section 46 of the repealed Act (or, in the case of a declaration made before 2 January 1997, section 48 of the repealed Act) on the basis of which the decision to grant the existing major development authorisation was made will be taken to be a declaration made by the Minister under section 108(1)(c) of the Act (and may be varied or revoked in accordance with section 108(6));
(c) the EIS, PER or DR prepared under the repealed Act in connection with the development approved by the existing major development authorisation will be taken to be an EIS for the purposes of the Act (and may be amended in accordance with section 114);
(d) the Assessment Report prepared under the repealed Act in connection with the development approved by the exist
This is an opening excerpt, not the complete document.
The regulations operationalise a hybrid transition model where some places move immediately to the Planning and Design Code and PDI Act on the revocation of the Development Plan (reg 10(1)(a)), while others continue under the repealed Act until the Minister takes the relevant revocation step (reg 10(1)(b)). This is a staged or area-by-area transfer. The instrument deals with the edges of that staging , applications lodged before the relevant day, partly in one area and partly in another, crossovers between Planning and Design Code areas and retained Development Plan areas, and conversion of local heritage and tree protections into the new Code.
Several other operational concepts appear as limits or thresholds:
Gazette publication and SA planning portal publication: Ministerial amendments to the Planning and Design Code to implement adopted/approved DPAs have no effect until published on the SA planning portal (reg 8(3)(a)), and may take effect from that publication date or a later date the Minister specifies (reg 8(3)(b)). The Gazette is used to effect Code amendments but portal publication is the operative trigger (reg 8(2)-(3)).
Accreditation of panel members and managers: The regulations suspend the PDI Act’s accreditation requirement for assessment panel members and assessment managers until the relevant day applies in the area in which the panel is constituted (reg 11(8)(a)-(b)). This creates a temporary exception to PDI Act accreditation mandates.
These concepts interact to produce a ruleset that smooths the legal migration from the Development Act framework to the PDI Act/Planning and Design Code framework, while preserving existing rights, documents and assessments where those matters are already underway.
Parties to major development authorisations granted under the repealed Act: Existing major development authorisations are explicitly brought within the PDI Act regime for variation, cancellation and amendment processes (reg 11A(1)(a)-(d)). The authorisation holder, and persons affected by variations, will therefore be dealing with PDI Act sections cited in the regulations.
Owners of places of local heritage value and significant trees: Designations that existed in revoked Development Plans are migrated into the Planning and Design Code on the relevant day (regs 12-13). This affects property owners, councils, and assessment authorities in how controls and consent triggers apply.
Who pays and who decides: the Minister and Commission make triggers and carry out conversions that generate compliance and administrative costs for councils and applicants. Councils incur costs in preparing DPAs and completing public consultation under the repealed Act if they wish their DPAs to be considered for conversion (reg 8(1)(a)-(b)). Applicants face procedural change if their applications straddle different transitional statuses or are continued under a hybrid set of procedural rules (reg 11(2)-(6)). The State (via the Minister and Commission) decides the timing and content of converted Code amendments, and controls when the new assessment regime applies in particular areas (reg 8(2), reg 10(1)(a)).
The regulations therefore allocate responsibility for decision-making upwards to state actors (Minister/Commission) during conversion and preserve certain council roles but subject to time limits and conversion mechanisms. That reallocation changes incentives: councils may accelerate DPAs to meet publication or conversion windows; applicants may time lodgement to fall on one side of the relevant day; existing panel members and managers have a transitional breathing room for accreditation requirements (reg 11(8)).
Notices of decision use PDI Act form rules (reg 11(2)(a)): a notice will be in the form that applies under s 126 of the PDI Act rather than the repealed Act’s s 40.
Appeal rights: section 127 of the PDI Act applies in relation to continued applications rather than s 42 of the repealed Act (reg 11(2)(b)). The regulations also preserve a right of appeal under sections 38 and 86(1)(b) of the repealed Act for certain applications not finally determined before the relevant day, even if the internal processes under section 38 had not been commenced before the relevant day (reg 14).
For existing major development authorisations, express rights over variation, revocation or amendment are preserved by mapping PDI Act processes onto the existing authorisations (reg 11A(1)(a)-(d)).
Other notable procedural duties/limitations established by the regulations
Time limits on council DPA applications: councils cannot make an application under reg 8 for an amendment designating local heritage after 1 July 2021; for other DPAs, a council cannot apply more than 3 months after the Development Plan to which the DPA relates has been revoked (reg 8(5)(a)-(b)). That imposes a temporal duty to act quickly.
Publication duty: any Minister-made Code amendment under reg 8(2)/(2a) does not take effect until published on the SA planning portal (reg 8(3)(a)), and the Minister may specify an effective date (reg 8(3)(b)). This creates an administrative requirement for public notification to effect legal changes.
Mapping of historical references: regulation 15 imposes the duty on readers and drafters to treat references to the Development Act, Planning Strategy, or Development Plans in other Acts or instruments as including corresponding PDI Act provisions, state planning policy or the Planning and Design Code unless context requires otherwise (reg 15(1)-(2)). This reduces the need for immediate sweeping amendment of all secondary instruments when the primary statute changes, but imposes a duty on agencies and counsel to interpret references accordingly.
Rights and remedies in practice are largely preserved, but the form of exercise may change (for example, notices and appeals using PDI Act forms and sections). The regulations therefore create procedural duties for decision-makers and administrative duties for publication and consultation, while protecting certain applicant rights through re-mapping of appeal and authorisation provisions.
No new monetary fines, criminal offences or additional sanctioning powers are created in the regulations themselves. Instead they direct which existing statutory sanctioning regimes will apply to in-flight matters, and who will be the relevant actor to make enforcement decisions once the PDI Act regime applies.
Implementation and enforcement risk: Because the regulations reassign enforcement roles and map documents across two regimes, there is scope for procedural disputes over which regime and which decision-maker apply in edge cases. For example, where an application straddles areas subject to different relevant days, regulation 11(5) prescribes that the application will be assessed as if regulation 10(1)(a) applied to the entire development, and sets who is the relevant authority (Minister or Commission) depending on the type of application (reg 11(5)(b)(i)-(ii)). That allocation reduces uncertainty by specifying the authority, but it creates a single point of decision-making where enforcement or penalties may attach, which may in turn generate contestation over whether the threshold triggers for Ministerial or Commission authority were correctly applied. The regulations avoid creating new sanctioning mechanisms; they instead channel matters into existing PDI Act enforcement provisions (as referenced in regs 11(2), 11A(1)).
For compliance professionals and counsel, the practical enforcement consequence is to identify at the point of revocation or conversion which legislative enforcement scheme applies to a given development, and to ensure procedural steps (notices, appeals, variations) are taken in accordance with the PDI Act rather than the repealed Act once a decision is to be treated as a PDI Act decision under the transitional rules.
Local heritage and significant trees: Regulations 12 and 13 migrate designations of local heritage places and significant trees from revoked Development Plans into the Planning and Design Code on the relevant day and permit the Minister to include those designations by Gazette. Regulation 12(4) also makes a specific negative interaction: section 202(1)(a) of the PDI Act does not apply to or in relation to designation of a place of local heritage value under the PDI Act by operation of reg 12(1) or 12(2). This is an explicit carve-out in the interaction between the transitional operation and s 202 of the PDI Act.
Assessment panels and accreditation: The regulations interact with the Planning, Development and Infrastructure (Accredited Professionals) Regulations 2019 and the PDI Act’s accreditation regime by suspending the accreditation requirement for panel members and assessment managers until the relevant day for the area in which they operate (reg 11(8)). This creates a temporal exemption in the chain of delegated or administrative law requirements.
Continuation of declared project processes: Regulation 11(3) ensures that declarations and project assessments made under the repealed Act prior to the relevant day continue to be subject to the repealed Act, with mapping of certain decision‑making roles to the Minister or Commission and recognition of prior findings or determinations. This interacts with environmental impact assessment regimes and any statutory appeals or review mechanisms that apply to declared projects.
Practical cross‑statutory effects:
The interpretive substitution in reg 15 reduces the immediate need to amend every statute or instrument that mentions the Development Act. However, that substitution relies on contextual interpretation. Parties drafting statutory instruments, development agreements, covenants or other instruments that refer to the Development Act must review whether "context otherwise requires" in their specific texts, because the substitution rule is not absolute.
Where the regulations map old procedural provisions to the PDI Act’s sections (for example, notices and appeals), the substance of enforcement, time limits and rights may change as between regimes. Practitioners must therefore track the substantive content of the PDI Act provisions that are referenced by these transitional mappings; the regulations do not reproduce those substantive provisions.
The staged commencement rules create jurisdictional interactions at boundaries where the Planning and Design Code overlaps a Development Plan area (reg 11(6)). The regulations resolve these clashes by prescribing that development in such overlaps will be assessed as if the Planning and Design Code applied (reg 11(6)(c)), and that the Minister or Commission will be the relevant authority depending on the class of application (reg 11(6)(d)). This avoids split-assessment but centralises authority, which in turn affects how enforcement or appeals interact with other statutory regimes (for example, heritage protections, environmental licensing).
In short, the regulations are an instrument of statutory interoperability. They do not alter the substantive tests for development consent, but they reallocate decision-makers, map documents and rights across regimes, and create publication and application deadlines that interact with other administrative and statutory procedures.
Some changes created new deadlines (for example, r 8(5) with a 1 July 2021 cut-off for certain council DPA applications) and new substantive re-mappings (for example, r 11A’s importation of s 115 and s 108 equivalents). Those cut-offs are the product of amendment, not the original instrument.
The legislative history also shows that certain provisions were omitted under the Legislation Revision and Publication Act 2002 on 1.10.2017 (the short title or headings may have been adjusted). It therefore underscores the need to consult the consolidated instrument as in force for a given date rather than relying on older printouts.
For compliance and historical research, the legislative history in the instrument is the authoritative internal roadmap of how the transitional regime matured. Practitioners should trace amendments against their project timelines to determine which transitional rules applied at each decision point.
Limitations on discussing litigation: The regulations do not name any cases or provide a case law record. Any discussion of actual litigation outcomes would have to rely on searching external case law databases and is not contained in the instrument itself. The text does, however, create the procedural circumstances that are likely to generate the kinds of disputes described above. Practitioners should therefore expect litigation to engage questions of administrative law: validity of Ministerial decisions, compliance with consultation and publication requirements, correct application of appeal and notice provisions, and jurisdictional allocation where areas straddle different relevant days.
If litigation has occurred concerning these regulations, it will appear in the broader case law corpus for South Australian planning matters; the regulations themselves do not record such history.
Time-limited council applications for heritage DPAs:
Councils may not apply to convert DPAs that solely designate places of local heritage value under the repealed Act after 1 July 2021 (reg 8(5)(a)). For other DPAs, the council has only three months after revocation of the relevant Development Plan to apply (reg 8(5)(b)). These deadlines can be easy to miss and are jurisdictional.
Accreditation deferral:
Members of assessment panels and assessment managers are not required to be accredited professionals under the PDI Act until the relevant day applies in their area (reg 11(8)(a)-(b)). While this is a temporary relief, it can create varying standards across areas and may require councils to plan for later accreditation burdens.
Carry-over of environmental documentation:
For existing major development authorisations, environmental statements and assessment reports prepared under the repealed Act are treated as EIS documents under the PDI Act and may be amended under s 114 (reg 11A(1)(c)-(d)). Parties should not assume the EIS or assessment report need re‑doing immediately, but should also note that amendment powers exist.
Appeals preserved even if internal processes not started:
A right of appeal under sections 38 and 86(1)(b) of the repealed Act may be exercised for applications not finally determined before the relevant day even if the procedural step under section 38 had not been started (reg 14). This allows certain applicants to bring appeals despite procedural incompleteness, contrary to some expectations that internal steps must be complete.
Interpretive rule is contextual:
Regulation 15’s rule that references to the Development Act, Planning Strategy or Development Plan are to be taken to include corresponding PDI Act or Code references is qualified by "unless the context otherwise requires" (reg 15(1)-(2)). That phrase is an interpretive safety valve; do not assume automatic substitution where the textual context expressly contemplates the repealed Act’s specifics.
Ministerial discretion and consultation:
While the Minister must consult the Commission when making certain decisions about DPAs (reg 8(1), (1a)), the regulation does not prescribe the content or scope of that consultation or create a right for third parties to compel consultation. Third-party expectations about participation need to be managed accordingly.
Gazetted versus portal-effective dates:
The regulations allow the Minister to specify a later effective date for an amendment after portal publication (reg 8(3)(b)). That means an amendment could be gazetted and portal‑published but be drafted to commence at a defined later date, which affects planning timelines and the assessment of applications lodged during the interim.
Each one of these "gotchas" arises directly from a provision in the regulations and can have material consequences for timing, rights and administrative practice. Practitioners should map their files against the relevant day, confirm whether a Development Plan has been revoked for the area in question, and check the SA planning portal and Gazette for conversions.
For applicants with in-flight applications under the repealed Act:
If your application was lodged under the repealed Act and not finally determined before the relevant day in the area, you may continue and complete the application under the repealed Act subject to the specified PDI Act procedural forms (reg 11(2)). Specifically, expect that the notice of decision will be in the PDI Act form (s 126) and that the appeal route will be that under s 127 of the PDI Act (reg 11(2)(a)-(b)). Prepare to use PDI Act forms and comply with its time limits at the point of decision.
If the development straddles areas with different relevant days, note that the application will be assessed as if regulation 10(1)(a) applied to the whole development and identify whether the Minister or Commission will be the relevant authority (reg 11(5)(a)-(b)). This affects the lodgement and procedural direction of the application.
For declared projects or those subject to s 46 declarations under the repealed Act:
If a declaration under s 46 was made before the relevant day and the project has not had a Governor decision under s 48 before the relevant day, continue to treat the project as under the repealed Act but note that, on or after the relevant day, references to the Governor are to be taken as references to the Minister and certain subsections will apply as if references to the Minister were references to the Commission (reg 11(3)(a)-(b)). Identify any earlier Ministerial findings that the Commission may adopt (reg 11(3)(b)).
For existing major development authorisations:
Treat the authorisation as subject to section 115 of the PDI Act, including potential variation or cancellation procedures (reg 11A(1)(a)). Recognise that prior declarations that gave rise to the authorisation will be taken to be declarations under s 108(1)(c) and may be varied under s 108(6) (reg 11A(1)(b)). Use the existing EIS/PER/DR material as an EIS under the PDI Act and be prepared that the material may be amended under s 114 (reg 11A(1)(c)-(d)).
For councils and assessment panels:
Appoint the assessment panels envisaged by Schedule 8 of the PDI Act in a timely way to avoid having existing repealed-Act panels continue longer than intended (reg 6(2)). Note that panel members and assessment managers do not need to be accredited under the PDI Act until the relevant day in the area (reg 11(8)(a)-(b)), but plan for later accreditation requirements.
When a Development Plan is revoked, review local heritage places and significant tree designations and ensure they are appropriately captured in the Code and in Gazette notifications if required (regs 12-13).
Publication and monitoring:
Monitor the SA planning portal for the operative publication of Code amendments; Gazette notification alone is not sufficient (reg 8(3)(a)). If relying on converted Code provisions for approvals or refusals, ensure the amendment is portal-published and that any specified later commencement date has passed (reg 8(3)(b)).
Documentation and record-keeping:
Keep clear records of which regime applied at each step of the application process, including dates of lodgement, notices served, consultation completed, and any Ministerial or Commission decisions that map the proceeding into the PDI Act. The transitional rules invoke different documents (for example EIS/PER/DR treated under reg 11A(1)(c)); maintain the originals and records of any amendments under s 114.
Legal review points:
When there is uncertainty about whether a given procedural step should be taken under the repealed Act or the PDI Act, perform a targeted legal check against regs 10 and 11 to determine whether the relevant day has passed for the area and whether any overlap rules apply (reg 11(5)-(6)). Check the Minister’s Gazette notices and SA planning portal entries for the latest operative instruments (reg 8(2)-(3)).
Appeals strategy:
If an internal process under the repealed Act had not been commenced before the relevant day, but an appeal right under ss 38 or 86(1)(b) of the repealed Act might be available, consider the preservation of appeal rights under reg 14. Integrate potential appeal timelines with the PDI Act appeal mechanisms now invoked for continued applications (reg 11(2)(b)).
These steps follow directly from the regulatory text and map practical compliance tasks onto the transitional rules. The principal compliance risk is temporal: missing a relevant date (whether the relevant day, the 1 July 2021 cut-off for heritage DPAs, or the three‑month post-revocation window for other DPAs) can foreclose opportunities or change the applicable decision-maker. The other recurring theme is administrative coordination: Gazette notice, SA planning portal publication and application forms need to be synchronised with the substantive approvals to ensure legal effect.