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Public Participation in Amendments to Development Policy

The Planning, Development and Infrastructure Act 2016 (SA) contains procedures for amendments to various development policies and strategies. This includes amendments to the Planning and Design Code. This procedure involves public consultation and engagement, to provide the community with the opportunity to make submissions about the proposed amendments. The Community Engagement Charter (see below) establishes key principles and processes to guide how public consultation is to be conducted, before amendments to development policies are made [s 75, Planning, Development and Infrastructure Act 2016 (SA)].

Minor or operational amendments to the Planning and Design Code may be made by the Minister, and published in the state Gazette [s 76]. Examples of minor or operational amendments include changes to required forms, the removal or inclusion of specific Stage Heritage listed sites or buildings, correcting an error etc.

Community Engagement Charter

Under the Act, the State Planning Commission (SPC) is responsible for establishing and maintaining the Community Engagement Charter (the Charter) [s 44(2)]. A copy of the Community Engagement Charter is available on the Plan SA - Community Engagement Charter webpage (opens new window).

The Charter sets out guidelines and process for development bodies to consult with the community on state planning and local development policy. The Charter concentrates on including the community in the development of planning policy. It does not include community engagement for the development assessment of specific development projects. See also 'Appeals' generally.

For example, community members may be concerned about a proposal to rezone certain land from 'light' to 'general' industry. These concerns may be addressed during the planning policy amendment process, rather than trying to challenge individual factories which seek to set up in the new zone. Once a rezoning has gone through, it will usually be too late to argue that the zoning is inappropriate or that it adversely affects local amenity.

The Charter has a statutory role under the new planning and development laws. It must be used to guide how development authorities seek public participation when amending development policies or developing new policies.

The Charter consists of mandatory requirements, general principles, and performance outcomes for community engagement. The Charter must be used to guide public consultation in respect of developing or amending the following planning policies and strategies:

  • State Planning Policies
  • Regional Plans
  • The Planning and Design Code
  • Design Standards
  • Infrastructure Delivery Scheme

Mandatory requirements

Development and planning bodies which the Charter applies to must comply with the mandatory requirements under the Charter. The relevant mandatory requirements depend on the consultation category that the proposed amendment to development policy relates to [see s 44(6) of the Act for example].

Table 1: Sets out the mandatory community engagement requirements, depending on the type of development policy.

Consultation Category

Mandatory Requirement

Proposals that are specifically relevant to a particular Council or Councils (where Council did not initiate the proposal).

That Council or Councils must be directly notified of the proposal and consulted.

Proposals that are generally relevant to Councils.

The Local Government Association must be notified in writing and consulted.

A proposal to enter a place within the Planning and Design Code as a place of local heritage value.q

The owner of any land on which the place resides, must be directly notified in writing of the proposal and consulted for a minimum period of four weeks.

A proposal to amend the Planning and Design Code to include any heritage character or preservation policy that is similar in intent or effect to a local heritage listing.

The owner of any land on which the place resides, must be directly notified in writing of the proposal and consulted for a minimum period of four weeks.

Infrastructure delivery scheme.

Landowners affected by the scheme must be directly notified in writing of the scheme under section 166 of the PDI Act for a minimum of four weeks.

Table 1: The content of Table 1 is reproduced under Creative Commons Licence and is attributed to The Department of Planning, Transport and Infrastructure, the Government of South Australia, Community Engagement Charter – April 2018, Sourced on 17 February 2021, https://plan.sa.gov.au/resources/planning/community_engagement_charter.

Principles of the Community Engagement Charter

The Community Engagement Charter seeks to ensure communities have enough time and the opportunity to participate in consultation, or access to information, about policy planning and development [s 44(3)].

The Charter sets out, among other things that the engagement processes must be:

  • Genuine
  • Inclusive and respectful
  • Fit for purpose
  • Informed and transparent
  • reviewed (at least every 5 years) and improved

Performance Outcomes & Measuring Performance

The Charter also outlines performance outcomes (from successful community engagement) and how the performance outcomes are measured. A copy of the Community Engagement Charter is available on the Plan SA - Community Engagement Charter webpage (opens new window).

Compliance with the Community Engagement Charter

The State Planning Commission is responsible for ensuring that the Charter is complied with. The SPC may provide direction to development body or intervention if it considers the Charter is not being complied with. In some cases, the SPC may intervene and undertake the community engagement process on behalf of the development body. In these circumstances the SPC may recover the cost of undertaking the community engagement from the development body.

The State Planning Commission can also direct a planning entity or local government authority to consult with a particular person in the community or community body to ensure the objectives of the charter are met.The Community Engagement Charter applies to various development and planning bodies, including:

  • State Planning Commission
  • Joint Planning Board
  • Chief Executive Officer of Department of Planning, Transport and Infrastructure (DPTI)
  • Council
  • Government agencies
  • Scheme Co-ordinator of an Infrastructure Delivery Scheme [under Part 13 Planning, Development and Infrastructure Act 2016 (SA)].

Amendments to Planning and Development Policies

The types of planning policies that may be amended under the Act are:

  • a state planning police
  • a regional plan
  • the Planning and Design Code
  • a design standard

Designated development bodies may propose to prepare a new planning policy, or amend an existing policy under the Act. The process for a development body initiating the creation of a new planning policy, or proposing an amendment to an existing policy is set out below.

Step 1:

The designated development body (i.e. Council) initiates a proposed new policy or an amendment to a specific development policy, and outlines the engagement process to be followed.

Step 2:

Minister for Planning approves the preparation of the new policy document or proposed amendments [s 73(2)].

  • State Planning Commission provides advice to Minister [s 73(2)(b)]
  • State Planning Commission endorses the engagement approach to be taken by the development body [s 44(10), s 73(6)(e) and (f)]

Step 3:

The designated development body (i.e. Council) prepares draft of the new policy document or proposed amendments to an existing policy.

Step 4:

Designated development body undertakes community engagement and consultation in accordance with Community Engagement Charter about the new policy or proposed amendment [s 73 (6)(b)]

Step 5:

The outcomes of community engagement and consultation are reported to the Minister for Planning in accordance with practice directions [ s 73(7)]. A copy of the report is made available on the SA Planning Portal [s 73(8)].

The State Planning Commission also checks the engagement process under Charter has been followed [s44(10, s 73(6)(e) & (f), and prepares a report for ERD Committee [s 74(3)].

Step 6:

After having received the report, the Minister then determines whether to adopt the new policy, accept the amendments of the existing policy, or make alterations [s 73(1)(c) and (d)]

If the Minister decides to adopt the new policy or amendments, the must be published (either in the Gazette if State Planning Policy, or one the SA Planning Portal [ss 73(12)(a) and (b)]. The new policy or amendments do not take effect until they are published, or from a later date specified by the Minster [s 73(12)(c)].

Step 7:

The Minister (or the SPC on the Ministers behalf) provides information about the new policy or amendments to the Environment, Resource Development Committee of Parliament within 28 days of adopting the new policy or amendment [s74 (2)]. The information provided to the ERD Committee must include a report setting out the reasons for the amendment or new policy, an outline of the consultation process undertaken, and any other relevant material or information prescribed in the regulations [s 74(3)]. The ERD Committee then has 28 days to resolve to:

  • accept the new or amended policy; or
  • suggest any further amendments to the policy; or
  • object to the policy.

If the ERD Committee has not come to any resolution after 28 days then it is presumed that the ERD Committee does not object to the new policy or amendment [s74 (5)].

Step 8:

If an amendment is suggested

if the ERD Committee suggests an amendment, the Minister may:

  • consult further with the SPC before making the amendment, and may then proceed to make the amendment by publishing a notice in the state Gazette; or
  • report back to the ERD Committee that the Minister is unwilling to make the amendment, at which point the ERD Committee must resolve to accept the policy or further object.

if the policy is objected to

If the ERD Committee continues to object to the policy, the policy (new or amended) is laid before both Houses of Parliament for discussion and resolution [s 74(11)]. If either House of Parliament passes a resolution to disallow the policy then policy ceases to have effect [s 74(12)]. If the policy has been through the process of amendment that has been disallowed, the original policy will continue to apply as it if had not been amended by the proposed amendment [s 74(12)]. Notice of the resolution must be published in the state Gazette.

Community Engagement on Development Applications

The Community Engagement Charter does not have a statutory role in the assessment of development applications. The relevant public notification requirements and feedback procedures in relation to development applications are set out in the Act and regulations. These requirements vary across the different assessment pathways within the new planning system. See 'Public Consultation'.

Amendments to the Community Engagement Charter

Amendments to the Community Engagement Charter may be proposed by the State Planning Commission (SPC) or at the request of the Minister.

The SPC must:

  • prepare a draft of the proposed amendment;
  • consult with development bodies as specified by the Minister
  • consult with Local Government Authorities
  • consult with any other entities prescribed by the regulations or any that the SPC thinks fit.
  • publish a copy of the proposed amendment on the SA planning portal

[s 45(2), Planning, Development and Infrastructure Act 2016 (SA)]

The SPC must also prepare a report on any matters raised during consultation, and provide the report to the Minister [s 45(3)]. The Minister can then decide to adopt the Charter as amended, make further alterations, or decide not to proceed with the proposed amendments [s 45(4)]. Amendments to the Charter do not take effect until it is published on the SA Planning Portal or any later date specified by the Minister [s 44(5) & (6).]

Parliamentary Scrutiny – ERD Committee

Within 28 days of adopting any amendments to the Charter, the Minister must refer the Charter (including any reasons for proposed amendments, information about the consultation period and feedback) to the Environmental, Resource and Development Committee (ERD Committee). The ERD Committee then has 28 days to review the Charter and relevant materials, and decide whether it will:

  • agree to the amendments to the Charter; or
  • suggest further amendments to the Charter; or
  • object to the amendments.

[see ss 46(1)-(3)].

If the ERD Committee does not provide a response within 28 days of the matter being referred from the Minister, it is presumed that the ERD Committee does not object to the Charter or amendment, or propose any amendments 

[see s 46(4)].

If the Minister has already consulted the ERD Committee before the finalisation of a proposed amendment to the Charter, the ERD Committee may resolve that the amendments do not need to be referred back to the ERD Committee for consideration when it is approved by the Minister [s 46(11)].

If the ERD Committee proposes amendments to the Charter, the Minister may proceed to make the amendments, or report back to the ERD Committee with reasons why the Minister is not prepared to make the proposed amendments [s 46 (7)]. The ERD Committee may then decide whether or not to object to the proposed amendments to the Charter. If the ERD Committee objects to the amendments, copies of the Charter and proposed amendments must be laid before both Houses of Parliament [s 46(8)]. If either House of Parliament passes resolution not to support amendments to the Charter, then the amendments will cease to have effect [s 46(9)].  A resolution by Parliament must be passed within 14 sitting days after the day on which the relevant amendments and Charter were laid before the house of parliament [s 46(10)].

Public Participation in Amendments to Development Policy  :  Last Revised: Mon Mar 15th 2021
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.